Borough of Chester, NJ Article XV Highlands Land Use

[Added 6-20-2017 by Ord. No. 2017-02-02[1]]

[1] Editor's Note: This ordinance also superseded Ord. No. 2016-08, adopted 12-20-2016, which updated submission requirements for applications for development and established Highlands Districts.

§ 163-101 Title; purpose; scope.

A. SHORT TITLE. This article shall be known and cited as the "Borough of Chester Highlands Planning Area Land Use Ordinance."

B. PURPOSE. The purpose of this article is to effectuate the policies, goals and objectives of the Chester Borough Master Plan, in particular the Highlands Element of the Master Plan, while at the same time advancing the purposes of zoning as set forth in the New Jersey Municipal Land Use Law ("MLUL," N.J.S.A. 40:55D-1 et seq.), addressing the substantive goals and intents of the Highlands Water Protection and Planning Act ("Highlands Act," N.J.S.A. 13:20-1 et seq.), and satisfying the goals, requirements and provisions of the Highlands Regional Master Plan (RMP).

C. SCOPE. The provisions of this article pertain to the use and development of all lands located within the Borough of Chester. The municipality lies fully within the Planning Area of the New Jersey Highlands Region. As a conforming municipality, the applicable provisions of the Borough of Chester Master Plan, land use ordinances and other pertinent regulations have been deemed by the New Jersey Highlands Water Protection and Planning Council ("Highlands Council") to be in conformance with the Highlands RMP. This article governs certain land uses, development and redevelopment activities, and the management and protection of resources, including but not limited to water resources, natural resources, agricultural resources, and historic, cultural and archaeological resources. The provisions of this article shall apply in conjunction with all other applicable ordinances, rules and regulations of the municipality. In the event of conflicting or less restrictive alternate provisions, the provisions of this article shall supersede.

D. STATUTORY AUTHORITY. This article is adopted under the authority of the MLUL and the Highlands Act. The Highlands Act provides authorities and responsibilities for municipal planning and development regulation that are complementary to those set forth under the MLUL. The MLUL gives authority to New Jersey municipalities to govern land use and development within their borders. The Highlands Act augments that authority to allow the municipality the power to enforce the goals, policies, objectives and programs of the Highlands RMP. The Highlands Act is designed to protect the natural and agricultural resources of the Highlands through a coordinated system of regional land use controls. The Highlands Act creates a system in which a regional plan is implemented primarily through local government units. The Highlands Act and the RMP together provide the regional perspective from which local decisions and actions will emanate.

E. SEVERABILITY. If any section, sentence, clause or phrase of this article is held to be invalid or unconstitutional by any court of competent jurisdiction, such holding shall in no way affect the validity of the article as a whole, or of any other portion thereof.

F. EFFECTIVE DATE. This article shall take effect after final passage and publication in the manner required by law.

§ 163-102 Applicability.

A. APPLICABILITY. The Highlands Land Use Ordinance shall apply to the use and development of all lands located within the Borough of Chester. Specifically, this article shall apply to any application seeking approval of a site plan, subdivision, or change in use where approval of such application would: A) for residential development (as defined at § 163-103B), create three or more dwelling units; B) for nonresidential development: 1) result in the ultimate disturbance of one acre or more of land; 2) produce a cumulative impervious surface area of 1/4 acre, or more; or 3) introduce or expand a use not permitted by this article. All thresholds in A) and B), above, shall be interpreted to apply cumulatively over time, beginning as of the effective date of this article. If or when any one of the thresholds is reached, the article shall apply to any and all development in excess of that threshold. Where an application proposes a mixed use, the thresholds in B) for nonresidential development shall apply to the whole of the project, while that in A) shall apply to the residential component. The phrases "residential development," "ultimate disturbance," and "cumulative impervious surface area," as used above and throughout this article, are defined as provided at § 163-103B. The provisions of this article shall apply in conjunction with and as a supplement to the existing Zoning Ordinance, development regulations, and all other rules, codes and regulatory provisions governing the use and development of land in the municipality. In the event of conflicting provisions, the provisions of this article shall supersede. Where provisions differ only by degree, the more restrictive of the applicable requirements shall supersede.

(1) Exclusions. The exclusions listed hereinbelow consist of specific activities, improvements, and development projects to which the provisions of this article shall not apply. These exclusions shall not be construed to apply across-the-board to any lot, tract or other division of land, whether existing or proposed as of the effective date of this article. Neither shall such exclusions be construed to alter, obviate or waive the requirements of any other applicable state or local law, rule, regulation, development regulation or ordinance. This would include, for example, the bulk requirements of the municipal zoning ordinance (e.g., yard and area requirements), the rules and regulations applicable to issuance of building permits, or the requirements of any municipal ordinance regulating the operation and maintenance of on-site septic systems.

(a) This article shall not apply to reconstruction, within the same footprint, of any building or other structure lawfully existing as of the effective date of this article, in the event of its destruction or partial destruction by fire, storm, natural disaster, or any other unintended circumstance.

(b) This article shall not apply to any improvement or alteration to a building or other structure lawfully existing as of the effective date of this article, where such improvement or alteration is necessary for compliance with the provisions of the Americans with Disabilities Act,[1] or to otherwise provide accessibility to the disabled.

[1] Editor's Note: See 42 U.S.C. § 12101 et seq.

(c) Unless specifically indicated otherwise, and in that case only to the specific extent indicated, the provisions of this article shall not apply to agricultural or horticultural use and development (as defined at § 163-103B).

(d) This article shall not apply to any activity, improvement, or development project specifically listed as a Highlands Act exemption at N.J.S.A. 13:20-28. The applicable Highlands Act exemptions include those listed below.

[1] Highlands Act Exemption 4. The reconstruction of any building or structure for any reason within 125% of the footprint of the lawfully existing impervious surfaces on the site, provided that the reconstruction does not increase the lawfully existing impervious surface by 1/4 acre or more. This exemption shall not apply to the reconstruction of any agricultural or horticultural building or structure for a nonagricultural or nonhorticultural use.

[a] For purposes of this article, this exemption shall not be construed to permit multiple 125% footprint expansions, but rather, to permit one or more reconstruction activities cumulatively resulting in a maximum 125% increase in the footprint of the impervious surfaces lawfully existing on the site, provided they do not cumulatively exceed the one-quarter-acre limitation.

[b] For purposes of this article, the applicable date of lawful existence shall coincide with the effective date of this article or of the Highlands Checklist Ordinance,[2] whichever is the earlier.

[2] Editor's Note: Ordinance No. 2016-08, adopted 12-20-2016, updated submission requirements for applications for development and established Highlands Districts.

[2] Highlands Act Exemption 6. Any improvement, for nonresidential purposes, to a place of worship owned by a nonprofit entity, society or association, or association organized primarily for religious purposes, or a public or private school, or a hospital, in existence on the date of enactment of the Highlands Act (August 10, 2004), including but not limited to new structures, an addition to an existing building or structure, a site improvement, or a sanitary facility.

[3] Highlands Act Exemption 7. An activity conducted in accordance with an approved woodland management plan pursuant to Section 3 of the Farmland Assessment Act, P.L. 1964, c. 48 (N.J.S.A. 54:4-23.3), or a forest stewardship plan approved pursuant to Section 3 of P.L. 2009, c. 256 (the State Park and Forestry Resources Act, N.J.S.A. 13:1L-31), or the normal harvesting of forest products in accordance with a forest management plan or forest stewardship plan approved by the State Forester.

[4] Highlands Act Exemption 8. The construction or extension of trails with nonimpervious surfaces on publicly owned lands or on privately owned lands where a conservation or recreational use easement has been established.

[5] Highlands Act Exemption 14. The mining, quarrying, or production of ready mix concrete, bituminous concrete, or Class B recycling materials occurring or which are permitted to occur on any mine, mine site, or construction materials facility existing on June 7, 2004.

[6] Highlands Act Exemption 15. The remediation of any contaminated site pursuant to P.L. 1993, c. 139 (N.J.S.A. 58:10B-1 et seq.).

B. PRIOR DEVELOPMENT APPROVALS. Any developer/owner/applicant (as applicable) associated with a development application that has received lawful approval(s) pursuant to the MLUL prior to the effective date of this article shall retain all of the rights and protections accorded and prescribed under the MLUL with regard to such approval(s). These protections shall apply to the specific land area and scope of the approvals granted, in accordance with any conditions attached thereto, subject to the approvals of any applicable state, county or other outside agency having jurisdiction thereon, and shall expire if (and in such event, when) such approval expires. The provisions of this article shall not be construed to alter or infringe upon such unexpired approvals, and any nonconforming development ultimately resulting from such approvals shall be permitted to continue in accordance with all applicable MLUL provisions concerning nonconforming uses, buildings and structures (pursuant to Subsection C below).

C. NONCONFORMING USES, BUILDINGS AND STRUCTURES. Any nonconforming use, building or structure lawfully existing at the time of passage of this article shall be permitted to continue upon the lot or within the structure it so occupies, and any such structure may be restored or repaired in the event of its partial destruction, in accordance with the provisions of the MLUL and the underlying municipal Zoning Ordinance. For purposes of this article, the words, "restored" and "repaired" shall in no case be construed to mean "expanded."

§ 163-103 Definitions.

A. WORD USAGE. Terms used in the body of this article which are defined by the Highlands Act are intended to have the same definitions as provided in the Highlands Act. Unless expressly stated to the contrary or alternately defined herein, terms which are defined by the MLUL are intended to have the same meanings as set forth in the MLUL. For purposes of this article, the terms "shall" and "must" are indicative of a mandatory action or requirement while the word "may" is permissive.

B. DEFINITIONS. For purposes of this article the following definitions shall apply:

AGRICULTURAL IMPERVIOUS COVER

Agricultural or horticultural buildings, structures or facilities with or without flooring, residential buildings and paved areas, but not meaning temporary coverings.

AGRICULTURAL OR HORTICULTURAL DEVELOPMENT

Construction for the purposes of supporting common farmsite activities, including but not limited to the production, harvesting, storage, grading, packaging, processing, and the wholesale and retail marketing of crops, plants, animals, and other related commodities and the use and application of techniques and methods of soil preparation and management, fertilization, weed, disease, and pest control, disposal of farm waste, irrigation, drainage and water management, and grazing.

AGRICULTURAL OR HORTICULTURAL USE

The use of land for common farmsite activities, including but not limited to the production, harvesting, storage, grading, packaging, processing, and the wholesale and retail marketing of crops, plants, animals, and other related commodities and the use and application of techniques and methods of soil preparation and management, fertilization, weed, disease, and pest control, disposal of farm waste, irrigation, drainage and water management, and grazing.

APPLICANT

Any entity applying to the Board of Health, Planning Board, Zoning Board of Adjustment, Zoning Officer, Construction Official, Chester Borough Land Use Board or other applicable authority of the municipality for permission or approval to engage in an activity that is regulated by the provisions of this article.

APPLICATION FOR DEVELOPMENT

The application form and all accompanying documents required by ordinance for approval of a subdivision plat, site plan, planned development, conditional use, zoning variance, or direction of the issuance of a permit pursuant to Section 25 or 27 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-34 or 40:55D-36).

AQUIFER

A geologic formation, group of formations, or partial formation containing saturated permeable rock, sand or gravel sufficient to store and transmit usable quantities of water to wells and springs.

ARCHAEOLOGICAL RESOURCES

Any material remains of past human life or activities which are of archaeological interest, such as tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items.

BEST MANAGEMENT PRACTICES (BMP)

Structural or nonstructural methods used to prevent or reduce the movement of sediment, nutrients, pesticides and other pollutants from the land to surface- or groundwater.

BUILDING PERMIT

Used interchangeably with the term "construction permit"; see definition below.

CADB

County Agriculture Development Board.

CLEAR-CUTTING

A forestry or logging practice in which most or all of the trees in a harvest area are cut down.

CLUSTER/CONSERVATION DESIGN DEVELOPMENT

A development design technique where principal buildings and structures are grouped together on a portion of the cluster project area, while the remaining land area is permanently deed-restricted in agricultural use, for conservation of environmental resources, or as open space for environmental protection including public recreational use.

CLUSTER/CONSERVATION DESIGN DEVELOPMENT GUIDELINES

Guidelines for cluster/conservation design development provided by the Highlands Council to guide municipalities in implementing cluster development projects and in assisting in local development review and Highlands project review.

CLUSTER PROJECT AREA

All of the individual parcels from which development is clustered including the area set aside for preservation and the area set aside for development.

COMMUNITY-BASED ON-SITE WASTEWATER FACILITIES

Sanitary sewerage treatment facilities (i.e., domestic treatment works) that discharge treated wastewater to groundwaters as regulated by a NJPDES permit under N.J.A.C. 7:14, which provide service to one or more parcels that are approved and constructed as a single development or planned development.

CONDITIONAL WATER AVAILABILITY

The amount of water availability allowed in a deficit HUC14 subwatershed, subject to certain mitigation requirements, as determined by the Highlands Council.

CONSTRUCTION PERMIT

A permit issued pursuant to the New Jersey Uniform Construction Code, Chapter 23 of Title 5 of the New Jersey Administrative Code (N.J.A.C. 5:23-1 et seq.), providing authorization to begin work subject to the conditions and requirements established under the provisions therein.

CONSUMPTIVE WATER USE

Any use of water that results in its evaporation, transpiration, incorporation into products or crops, consumption by humans or animals, or removal by any other means from a watershed or subwatershed, other than by conveyances as untreated water supply, potable water, or wastewater.

CONTAMINANT

A substance capable of causing contamination of a water supply.

CONTAMINATION

The presence of any harmful or deleterious substances in the water supply, including but not limited to hazardous substances, hazardous wastes, and substances listed in the New Jersey Administrative Code at N.J.A.C. 7:9C (Groundwater Quality Standards), N.J.A.C. 7:9B (Surface Water Quality Standards) and N.J.A.C. 7:10 (New Jersey Safe Drinking Water Act Regulations), and as these regulations may be amended from time to time.

CULTURAL RESOURCES

Sites, artifacts, or materials that relate to the way people live or lived, for example, archaeological sites, rock carvings, ruins, and the like. These resources are generally defined based on existing documentation or artifacts discovered relating to activities of people who lived, worked, or recreated in an area during a period in history.

CURRENT DEFICIT AREA

A HUC14 subwatershed characterized by negative net water availability, meaning that existing consumptive and depletive water uses exceed the capacity of the groundwater supply to sustain them.

DEFORESTATION

The conversion of forested areas to nonforested areas, whether for use as urban land, or any other nonforest land use; disturbance of an area characterized as "forest" pursuant to the procedures provided in Appendix A,[1] herein, the extent or effect of which is to disqualify the area from such designation.

DENSITY

The permitted number of dwelling units per gross acre of land to be developed; or if defined by the underlying municipal Zoning Ordinance, as provided therein.

DENSITY, SEPTIC SYSTEM

The gross acreage of land area required per individual septic system to physically contain and support its functions in keeping with the specified wastewater design flow.

DEPLETIVE WATER USE

Use of water whereby it is withdrawn from a HUC14 subwatershed and transported outside of the subwatershed (through utility conveyances as untreated water supply, potable water, or wastewater), resulting in a net loss of water to the subwatershed from which it originated.

DEVELOPMENT

The division of a parcel of land into two or more parcels, the construction, reconstruction, conversion, structural alteration, relocation, or enlargement of any building or other structure, or of any mining excavation or landfill, and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to the MLUL.

DEVELOPMENT SET ASIDE OF CLUSTER PROJECT AREA

All of the individual parcels within the area set aside for residential development including the infrastructure, open space, and utilities necessary to support the development pursuant to the requirements of § 163-108A(5).

DISCHARGE

Any intentional or unintentional action or omission, unless pursuant to and in compliance with the conditions of a valid and effective federal or state permit, resulting in the releasing, spilling, pumping, pouring, emitting, emptying or dumping of a hazardous substance into the waters or lands of the state or into waters outside the jurisdiction of the state when damage may result to the lands, waters or natural resources within the jurisdiction of the state.

DISSOLUTION

A space or cavity in or between rocks, formed by the solution of part of the rock material.

DISTURBANCE

The placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation. [Pursuant to § 163-106B(3) of this article, when considering land for conversion to nonagricultural land uses in a Highlands Open Water buffer, historic or current agricultural land uses shall not be considered "land improvements," "development," "land disturbances," or "land uses" for purposes of calculating the previously disturbed area.]

DISTURBANCE, ULTIMATE

The total existing or proposed area of disturbance of a lot, parcel, or other legally designated (or otherwise legally recognized) tract or subdivision of land, for the purpose of, and in connection with, any human activity, property improvement, or development, including the surface area of all buildings and structures, all impervious surfaces, and all associated land disturbances such as excavated, filled, and graded areas, and all lawn and landscape areas. Ultimate disturbance shall not include areas of prior land disturbance which at the time of evaluation: a) contain no known man-made structures (whether above or below the surface of the ground) other than such features as old stone rows or farm field fencing; and b) consist of exposed rock outcroppings, or areas which, through exposure to natural processes (such as weathering, erosion, siltation, deposition, fire, flood, growth of trees or other vegetation) are no longer impervious or visually obvious, or ecologically restored areas which will henceforth be preserved as natural areas under conservation restrictions.

ENDANGERED SPECIES

Species included on the list of endangered species that the NJDEP promulgates pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-13 et seq., and the Endangered Plant Species List Act, N.J.S.A. 13:1B-15.151 et seq., and any species or subspecies of wildlife appearing on any federal endangered species list or any species or subspecies of plant designated as listed, proposed, or under review by the federal government pursuant to the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.

ENVIRONMENTAL LAND USE OR WATER PERMIT

A permit, approval, or other authorization issued by the Department of Environmental Protection pursuant to the Freshwater Wetlands Protection Act, P.L. 1987, c. 156 (N.J.S.A. 13:9B-1 et seq.), the Water Supply Management Act, P.L. 1981, c. 262 (N.J.S.A. 58:1A-1 et seq.), the Water Pollution Control Act, P.L. 1977, c. 74 (N.J.S.A. 58:10A-1 et seq.), the Realty Improvement Sewerage and Facilities Act (1954), P.L. 1954, c. 199 (N.J.S.A. 58:11-23 et seq.), the Water Quality Planning Act, P.L. 1977, c. 75 (N.J.S.A. 58:11A-1 et seq.), the Safe Drinking Water Act, P.L. 1977, c. 224 (N.J.S.A. 58:12A-1 et seq.), or the Flood Hazard Area Control Act, P.L. 1962, c. 19 (N.J.S.A. 58:16A-50 et seq.). (N.J.S.A. 13:20-3.).

EXISTING CONSTRAINED AREAS

Stream flows within any HUC14 subwatershed(s) upstream of a current deficit area.

FARM CONSERVATION PLAN

A site-specific plan that prescribes needed land treatment and related conservation and natural resource management measures, including forest management practices, that are determined to be practical and reasonable for the conservation, protection, and development of natural resources, the maintenance and enhancement of agricultural or horticultural productivity, and the control and prevention of nonpoint source pollution.

FARM MANAGEMENT UNIT

A parcel or parcels of land, whether contiguous or noncontiguous, together with agricultural or horticultural buildings, structures and facilities, producing agricultural or horticultural products, and operated as a single enterprise.

FARMLAND SOILS, IMPORTANT

Soils based on soil data prepared by the USDA NRCS including the following four classifications: Prime Farmland Soils, Farmland Soils of Statewide Importance, Unique Farmland Soils, and Farmland Soils of Local Importance.

FARMLAND SOILS OF LOCAL IMPORTANCE

Farmland of local importance includes those soils that are not prime or of statewide importance and are used for the production of high-value food, fiber or horticultural crops.

FARMLAND SOILS OF STATEWIDE IMPORTANCE

Farmlands of statewide importance include those soils in NRCS Land Capability Class II and III that do not meet the criteria as prime farmland. These soils are nearly prime farmland and economically produce high yields of crops when treated and managed according to acceptable farming methods. Some may produce yields as high as prime farmland if conditions are favorable.

FARMLAND SOILS, PRIME

Prime farmlands include all those soils in NRCS Land Capability Class I and selected soils from Land Capability Class II. Prime farmland is land that has the best combination of physical and chemical characteristics for producing food, feed, forage, fiber and oilseed crops and is also available for these uses. It has the soil quality, growing season, and moisture supply needed to economically produce sustained high yields of crops when treated and managed according to acceptable farming methods, Prime farmlands are not excessively erodible or saturated with water for a long period of time, and they either do not flood frequently or are protected from flooding.

FARMLAND SOILS, UNIQUE

Soils used for special crops (such as cranberries in the New Jersey Pinelands). Unique soils are determined on a statewide basis by the State Soil Conservation Committee.

FARMSITE

A farm management unit as defined above.

FLOOR AREA

The area of each floor of a building lying within the inside perimeter of its exterior walls excluding vent shafts, courts, and unfinished areas such as basements or attics having ceiling heights less than that required for habitable space under the building code.

FLOOR AREA RATIO

The sum of the area of all floors of buildings or structures compared to the total area of the site; or if defined by the underlying Zoning Ordinance, as provided therein.

FOREST

A biological community as determined by the method set forth under Appendix A,[2] as adapted from NJDEP Preservation Area Rules, at N.J.A.C. 7:38-3.9.

FOREST AREA, TOTAL

The percentage of total area that is covered in forest.

FOREST AREA, UPLAND

A biological community that is a "forest," as defined above, and that is not located in an area designated as Highlands Open Waters (i.e., not a forested wetland or other Highlands Open Waters).

FOREST, CORE

The area and percent of a forest patch that is greater than 300 feet from a forest edge.

FOREST INTEGRITY

An expression of the application of landscape metrics to evaluate the effects of forest fragmentation across the landscape, thereby recognizing the ability of forests to provide essential ecosystem functions.

FOREST MANAGEMENT PLAN

A written guidance document describing the forest resources present on a property, the landowner's management goals and objectives, and the recommended practices or activities to be carried out over time on the land. This tool is used to evaluate a forestland's current state and provide a management process which, over time, meets the landowner's objectives, while maintaining health and vigor of the resource. Forest management plans are typically written for a ten-year period.

FOREST PATCH

A contiguous tract of forest bordered by either altered land or a road.

FOREST PATCH, MEAN DISTANCE TO CLOSEST (MDCP)

The average edge-to-edge distance between distinct forest patches located within a one-thousand-foot search radius of one another. The MDCP provides a measure of forest patch isolation within the landscape area of interest.

GROUNDWATER

Water contained in the interconnected voids of a saturated zone in the ground. A saturated zone is a volume of ground in which the voids in the rock or soil are filled with water greater than or equal to atmospheric pressure.

GROUNDWATER AVAILABILITY

The total amount of water assigned by the Highlands Council to a HUC14 subwatershed that can be used for consumptive and depletive water uses by water uses that do not draw from water supplies with a NJDEP-approved safe yield.

HABITAT VALUE

The value of an ecosystem area for maintenance of a healthy population of a species as determined by quantity, quality, type, and function.

HAZARDOUS SUBSTANCE

Any substance designated under 40 CFR 116 pursuant to Section 311 of the Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act) (Public Law 92-500; 33 U.S.C. § 1251 et seq.), the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., or Section 4 of the New Jersey Water Pollution Control Act (N.J.S.A. 58:10A-1 et seq.) and as these regulations may, from time to time, be amended. Substances listed include petroleum, petroleum products, pesticides, solvents and other substances.

HAZARDOUS WASTE

Any solid waste that is defined or identified as a hazardous waste pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E et seq., N.J.A.C. 7:26-8, or 40 CFR Part 261.

HIGHLANDS HISTORIC AND CULTURAL RESOURCE INVENTORY

The listing of historic, cultural and archaeological resources within the Highlands Region, including but not limited to: all properties listed on the New Jersey or National Register of Historic Places; all properties which have been deemed eligible for listing on the New Jersey or National Register of Historic Places; and all properties for which a formal opinion of the State Historic Preservation Office (SHPO) has been issued.

HIGHLANDS OPEN WATERS

All springs, streams including intermittent streams, wetlands, and bodies of surface water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but not including swimming pools. Highlands Open Waters include seeps, lakes, ponds, and vernal pools; all categories (including springs, streams, and wetlands) as described and defined in the Borough of Chester Environmental Resource Inventory.

HIGHLANDS OPEN WATERS BUFFER

A three-hundred-foot buffer around all Highlands Open Waters from the edge of the discernible bank of the Highlands Open Waters feature, or from the center line of that feature where no discernible bank exists. With respect to wetlands and other Highlands Open Waters features, the feature shall include a protection buffer of 300 feet, measured from the mapped wetlands (not from the wetlands buffer) delineated in a letter of interpretation, as provided by NJDEP.

HIGHLANDS PUBLIC COMMUNITY WATER SUPPLY SYSTEM

Public water supply systems in the Highlands Region that pipe water for human consumption to at least 15 service connections or that regularly serve at least 25 year-round residents.

HIGHLANDS REDEVELOPMENT AREA

A property, portion of a property, or group of properties designated as such by the Highlands Council and which includes one or more of the following: a) a brownfield site; b) a grayfield site; and c) any previously developed site in the Highlands Region. A Highlands redevelopment area may include the intervening or surrounding lands which are significantly affected by or necessary to support such sites, and is subject to a Highlands Council-approved redevelopment plan setting forth the scope and details of any redevelopment project(s) and/or activities permitted to occur.

HIGHLANDS SCENIC RESOURCE INVENTORY

The inventory of regionally significant lands within the Highlands Region that encompasses elements of high scenic quality worthy of protection, as approved by the Highlands Council.

HISTORIC DISTRICT

One or more historic sites and intervening or surrounding property significantly affecting or affected by the quality and character of the historic site or sites.

HISTORIC RESOURCES

Buildings, structures, objects, districts, sites, or areas that are significant in the history, architecture, archaeology, engineering or culture of a place or time.

HISTORIC SITE

Any real property, man-made structure, natural object or configuration of any portion or group of the foregoing of historical, archaeological, cultural, scenic, or architectural significance.

HUC

Hydrologic Unit Code; identification number developed by the USGS to designate drainage basins including watersheds and subwatersheds.

HUC14 SUBWATERSHED

A delineated subwatershed area identified by a fourteen-digit HUC, within which water drains to a particular receiving surface water body.

IMMEDIATE FAMILY MEMBER

A spouse, child, parent, sibling, aunt, uncle, niece, nephew, first cousin, grandparent, grandchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepparent, stepchild, stepbrother, stepsister, half brother, or half sister, whether the individual is related by blood, marriage, or adoption.

IMPERVIOUS SURFACE

Any structure, surface, or improvement that reduces or prevents absorption of stormwater into land, including, but not limited to, porous paving, paver blocks, gravel, crushed stone, decks, patios, elevated structures, and other similar structures, surfaces, or improvements.

IMPERVIOUS SURFACES, CUMULATIVE

The total area of all existing or proposed impervious surfaces situated or proposed to be situated within the boundary lines of a lot, parcel, or other legally recognized subdivision of land, expressed either as a measure of land area such as acreage, or square feet, or as a percentage of the total lot or parcel area.

INDIVIDUAL SUBSURFACE SEWAGE DISPOSAL SYSTEM

A system regulated under N.J.A.C. 7:9A for disposal of sanitary sewage into the ground which is designed and constructed to treat sanitary sewage in a manner that will retain most of the settleable solids in a septic tank and to discharge the liquid effluent to a disposal field, disposal bed, or disposal trench or trenches. The term "septic system" is equivalent in meaning.

LIGHT DETECTION AND RANGING (LIDAR)

Technology that uses an active sensor, similar to radar that transmits laser pulses to a target and records the time it takes for the pulse to return to the sensor receiver. This technology is used for high-resolution topographic mapping.

LINEAR DEVELOPMENT

Infrastructure, utilities and the associated rights-of-way therefor, including but not limited to such installations as railroads, roads, sewerage and water supply pipelines, stormwater management pipes and channels, natural gas and liquid fuel pipelines, electric, telephone and other transmission lines, and in all cases, the associated rights-of-way therefor.

LOW-IMPACT DEVELOPMENT

An environmentally sensitive approach to land use planning that uses a variety of landscape and design techniques to manage development activities to mitigate potential adverse impacts on the natural environment.

MAJOR POTENTIAL CONTAMINANT SOURCES (PCS)

Land uses and activities determined by the Highlands Council to pose a major risk of groundwater contamination (see Appendix B[3]).

MASTER PLAN

For purposes of this article, all references to the "Borough of Chester Master Plan," "master plan," or "Master Plan," refer to the municipal master plan, as adopted by the Borough of Chester Planning Board and its successor, the Chester Borough Land Use Board.

MASTER PLAN, HIGHLANDS REGIONAL (RMP)

For purposes of this article, all references to the Highlands Regional Master Plan (RMP), shall be by use of the words "Highlands Regional Master Plan," "Highlands RMP," "Regional Master Plan," or "RMP."

MINOR POTENTIAL CONTAMINANT SOURCES (PCS)

Land uses and activities determined by the Highlands Council to pose a minor risk of groundwater contamination (see Appendix C[4]).

MUNICIPAL LAND USE LAW (MLUL)

The New Jersey Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq.

NJDA

New Jersey Department of Agriculture.

NJDA AGRICULTURAL DEVELOPMENT IN THE HIGHLANDS RULES

The regulations established by the NJDA to implement requirements of the Highlands Act, titled and codified at N.J.A.C. 2:92.

NJDEP

New Jersey Department of Environmental Protection.

NJDOT

New Jersey Department of Transportation.

NJPDES

New Jersey Pollutant Discharge Elimination System.

NJPDES PERMIT

A permit issued by the NJDEP authorizing certain discharges to ground- or surface waters of the State of New Jersey pursuant to the New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., as amended, and its implementing rules at N.J.A.C. 7:14A.

NJ SOIL EROSION AND SEDIMENT CONTROL ACT RULES

Regulations adopted by the State Soil Conservation Committee at N.J.A.C. 2:90-1, incorporating requirements for best management practices regarding temporary and permanent soil erosion control.

NONCONFORMING LOT

Any lot having an area, dimension or location which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

NONCONFORMING STRUCTURE

Any structure having a size, dimension or location which was lawful prior to the adoption, revision or amendment of a zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

NONCONFORMING USE

A use or activity which was lawful prior to the adoption, revision or amendment of a municipal zoning ordinance, but which fails to conform to the requirements of the zoning district in which it is located by reason of such adoption, revision or amendment.

NONPUBLIC WELL

Any water supply well used for potable purposes other than a public community or noncommunity water supply well.

NONSTRUCTURAL STORMWATER MANAGEMENT

Techniques and practices devised to manage stormwater runoff and reduce pollution levels, without extensive construction efforts. Nonstructural management strategies often mimic the natural hydrology of a site and utilize site planning and design to accomplish stormwater control.

NRCS

Natural Resources Conservation Service of the United States Department of Agriculture.

OPERATIONS AND CONTINGENCY PLAN

A management plan prepared in support of an existing or proposed major or minor potential contaminant source (PCS), that: a) documents the specific PCS(s) existing or proposed for a particular site; b) describes the types and quantities of substances and/or wastes expected to be used, discharged or stored on the site; c) indicates the means by which spillage, leakage or discharge of such materials will be prevented; d) provides the means or methods to be used to contain or remedy any accidental spill, leak, discharge or migration of such materials from the site directly or indirectly into groundwater, surface water bodies, or the land surfaces that provide recharge to the underlying aquifer; e) indicates the procedures to be undertaken to notify the appropriate administrative authorities, including but not limited to the NJDEP and the Board of Health, regarding any accidental spillage or discharge of such materials; and f) demonstrates that best management practices have been incorporated into the design and management of both the site and the particular PCS(s) it contains to ensure against such discharges.

PERSON

Any individual, public or private corporation, company, partnership, firm, association, owner or operator, political subdivision of this state, and any state, federal or interstate agency or an agent or employee thereof.

PLANNING AREA

Lands within the Highlands Region that are not located in that portion designated by the Highlands Act as the "Preservation Area" (see metes and bounds description at N.J.S.A. 13:20-7b). For purposes of this article, this terminology shall also be used to refer to Planning Area lands located solely within the Borough of Chester.

POTENTIAL CONTAMINANT SOURCE (PCS)

Activity or land use that may be a source of a contaminant that has the potential to move into groundwater withdrawn from a well.

PRESERVATION AREA

Lands within the Highlands Region that are located in that portion designated by the Highlands Act as the "Preservation Area" (see metes and bounds description at N.J.S.A. 13:20-7b).

PRESERVATION SET ASIDE OF CLUSTER PROJECT AREA

All of the individual parcels within the area set aside for preservation that must be deed-restricted against further subdivision pursuant to the requirements of § 163-108A(4).

PUBLIC COMMUNITY WATER SYSTEM

A public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year round residents.

PUBLIC COMMUNITY WELL

A well that provides water to a public water system serving at least 15 service connections used by year-round residents or regularly serving at least 25 year-round residents.

PUBLIC NONCOMMUNITY WATER SYSTEM

A public water system that is not a public community water system and is either a "public nontransient noncommunity water system" or a "public transient noncommunity water system" as defined herein.

PUBLIC NONCOMMUNITY WELL

A well that is not a public community well and that provides water to a public water system regularly serving at least 25 individuals for at least 60 days in any given calendar year.

PUBLIC NONTRANSIENT NONCOMMUNITY WATER SYSTEM

A public water system that is not a public community water system and that regularly serves at least 25 of the same persons for more than six months in any given calendar year.

PUBLIC TRANSIENT NONCOMMUNITY WATER SYSTEM

A public water system that is not a public community or a public nontransient noncommunity water system and that serves at least 25 transient individuals for at least 60 days in any given calendar year.

PUBLIC WATER SYSTEM

A system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least 15 service connections or regularly serves at least 25 individuals daily for at least 60 days out of the year. Such term includes any collection, treatment, storage and distribution facilities under control of the operator of such system and used primarily in connection with such system, and any collection or pretreatment storage facilities not under such control which are used primarily in connection with such system. A public water system is either a "public community water system" or a "public noncommunity water system" as defined herein.

RARE SPECIES

Wildlife species that are not endangered or threatened wildlife species but are considered by the NJDEP to be species of special concern as determined by a panel of experts, or that are ranked S1 (critically imperiled in New Jersey because of extreme rarity), S2 (imperiled in New Jersey because of rarity), S3 (rare in New Jersey), G1 (critically imperiled globally), G2 (imperiled globally because of rarity) or G3 (globally very rare and local throughout its range or found locally in a restricted range) in the Natural Heritage Database, and Plant Species of Concern listed pursuant to N.J.A.C. 7:5C-3.1.

REFORESTATION

The restoration (replanting) of a forest that has been reduced by fire, cutting, or any other cause.

RESIDENTIAL DEVELOPMENT

Development dedicated to the creation of new dwelling units or the improvement or expansion of existing dwelling units, whether by new construction or conversion of existing building areas or portions thereof, to dwelling use, including any type of residential structure whether a single-family home (including group home), duplex, townhouse, apartment or any other form of multifamily housing construction. For purposes of this article, residential development shall include property improvements associated with, and either required in support of or customarily accessory to, the residential use, including but not limited to porches, patios, decks, driveways, garages, storage sheds, swimming pools, tennis courts, drywells, utility facilities, septic systems, yard grading and retaining walls.

RESOURCE MANAGEMENT SYSTEM PLAN

A site-specific conservation system plan that: 1) prescribes needed land treatment and related conservation and natural resource management measures, including forest management practices, for the conservation, protection, and development of natural resources, the maintenance and enhancement of agricultural and horticultural productivity, and the control and prevention of nonpoint source pollution; and 2) establishes criteria for resources sustainability of soil, water, air, plants, and animals.

REVIEWING BOARD

The municipal Planning Board or Zoning Board of Adjustment, as applicable, established pursuant to N.J.S.A. 40:55D-23 or 40:55D-69 respectively, or any committee formally designated and authorized to act on behalf of such board pursuant to other provisions of the MLUL (e.g., Minor Subdivision Committee of a Planning Board). Article references to "reviewing board" shall mean the Chester Borough Land Use Board constituted pursuant to N.J.S.A. 40:55D-25.c.(1).

RIPARIAN AREA

Areas adjacent to and hydrologically interconnected with Highlands Open Waters rivers and streams consisting of flood-prone areas, wetlands, soils that are hydric, alluvial, or have a shallow depth to groundwater, and including wildlife passage corridors within 300 feet of surface Highlands Open Waters features.

RIPARIAN AREA, FLOOD-PRONE PORTION

Areas delineated by the Highlands Council based on NJDEP flood-prone and FEMA Q3 flood area mapping (NJDEP 1996, FEMA 1996) including USGS documented (by prior flood events) and undocumented flood-prone areas and Federal Emergency Management Agency (FEMA) one-hundred-year floodplain.

RIPARIAN AREA WILDLIFE CORRIDOR

A three-hundred-foot corridor on each mapped stream bank or from the stream center line if no stream bank is mapped.

RIPARIAN SOILS

Soils associated with Highlands Open Waters that are hydric, alluvial, or exhibit a shallow depth to seasonal high water table.

RMP UPDATE

A factual update to the Highlands Regional Master Plan based upon receipt of new, corrected or updated factual information and verification by the Highlands Council.

SADC

State Agriculture Development Committee.

SCD

Soil Conservation District, as established in accordance with the Soil Conservation Act, N.J.S.A. 4:24-1 et seq.

SCENIC RESOURCES

Sites and landscapes that are distinctive and remarkable for their geology, topography, history, culture, and aesthetics or can be representative of the defining character of a community. They may include prominent ridgelines, mountainsides or hillsides, panoramic vistas, community gateways and landmarks, river valleys, and agricultural landscapes.

SEDIMENTATION

The process of deposition of a solid material from a state of suspension or solution in a fluid (usually air or water).

SEPTIC SYSTEM

A system regulated by N.J.A.C. 7:9A for disposal of sanitary sewage into the ground which is designed and constructed to treat sanitary sewage in a manner that will retain most of the settleable solids in a septic tank and to discharge the liquid effluent to a disposal field, disposal bed, or disposal trench or trenches. The term "individual subsurface sewage disposal system" is equivalent in meaning.

SEWER SERVICE AREA (SSA)

The land area identified in an areawide water quality management plan from which generated wastewater is designated to flow to a domestic treatment works or industrial treatment works. A distinct sewer service area is established for each domestic treatment works and industrial treatment works.

SHORELINE

The ordinary high water mark, or point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized characteristic.

SITE DISTURBANCE

The placement of impervious surface, the exposure or movement of soil or bedrock, or the clearing, cutting, or removing of vegetation.

SLOPE or GRADE)

An area of land forming an incline; a measure used to describe the degree of inclination of an area of land; the difference in vertical elevation ("rise") of a land area occurring over a specified horizontal distance ("run"). For example, a land area having a one-foot vertical rise over a ten-foot horizontal run, has a slope of 10%. A ten-foot vertical rise over a twenty-five-foot horizontal run indicates a slope of 40%.

SLOPES, CONSTRAINED

All non-Riparian Area lands having a slope of 15% to less than 20% which are nonforested and exhibit one or more of the following characteristics: a) highly susceptible to erosion; b) shallow depth to bedrock; or c) a soil capability class indicative of wet or stony soils.

SLOPES, LIMITED CONSTRAINED

All non-Riparian Area lands having a slope of 15% to less than 20%, which are nonforested, are not highly susceptible to erosion, and do not have a shallow depth to bedrock or a soil capability class indicative of wet or stony soils.

SLOPES, MODERATELY CONSTRAINED

All forested non-Riparian Area lands having a slope of 15% to less than 20%.

SLOPES, SEVERELY CONSTRAINED

All lands having slopes of 20% or greater and all lands within Riparian Areas having slopes of 10% and greater.

SLOPE, STEEP

Any slope having a grade of 15% or more, or, if situated in a Riparian Area, of 10% or more.

SOIL CAPABILITY CLASS

Soil class designated by the United States Department of Agriculture (USDA) "Soil Survey," available from the Natural Resource Conservation Service and containing descriptions of soil series on a county-by-county basis (available online at www.soildatamart.nrcs.usda.gov).

SOLAR PANEL

An elevated panel or plate, or a canopy or array thereof, that captures and converts solar radiation to produce power, and includes flat plate, focusing solar collectors, or photovoltaic solar cells and excludes the base or foundation of the panel, plate, canopy, or array (as defined by the Highlands Act, N.J.S.A. 13:20-1 et seq, as amended).

SPECIES OF SPECIAL CONCERN

Wildlife species identified by the NJDEP that warrant special attention because of evidence of population decline or inherent vulnerability to environmental deterioration or habitat modification that would result in the species becoming threatened if conditions surrounding the species begin or continue to deteriorate. The term includes species for which there is little knowledge of current population status in the state.

STORMWATER MANAGEMENT RULES

NJDEP rules at N.J.A.C. 7:8 that set forth the required components of regional and municipal stormwater management plans, and establish the stormwater management design and performance standards for new (proposed) development.

STRUCTURE

A combination of materials to form a construction for occupancy, use or ornamentation whether installed on, above, or below the surface of a parcel of land.

SUBSIDENCE SINKHOLES

Sinkholes formed by the downward settlement of unconsolidated overburden into openings in underlying, soluble bedrock.

SURFACE WATER

Any waters of the State of New Jersey which are not groundwater.

SUSTAINABLE AGRICULTURE

An integrated system of plant and animal production practices having a site-specific application that will over the long-term: a) satisfy human food and fiber needs; b) enhance environmental quality and the natural resource base upon which the agricultural economy depends; c) make the most efficient use of nonrenewable resources and on-farm resources and integrate, where appropriate, natural biological cycles, and controls; d) sustain the economic viability of farm operations; and e) enhance the quality of life for farmers and society as a whole (1990 Farm Bill).

TECHNICAL SERVICE PROVIDER (TSP)

Professionals from outside of the United States Department of Agriculture that are certified by the NRCS to assist agricultural producers in applying conservation measures.

THREATENED SPECIES

An indigenous nongame wildlife species of New Jersey designated pursuant to the Endangered and Nongame Species Conservation Act, N.J.S.A. 23:2A-13 et seq., and its implementing rules, N.J.A.C. 7:25-4.17, as most recently amended.

TIME OF TRAVEL

The average time that a volume of water will take to travel through the zone of saturation from a given point to a pumping well.

TOTAL MAXIMUM DAILY LOAD (TMDL)

The pollutant loading that a surface water body may assimilate without violating NJDEP Surface Water Quality Standards (N.J.A.C. 7:9B) and a determination of the extent to which pollutant loadings to a water body must be reduced to restore that water body to a water quality that complies with the Surface Water Quality Standards. A TMDL includes an allocation of allowable pollutant loads to specific point sources (wasteload allocations) and categories of nonpoint sources (load allocations), after subtraction of a margin of safety and, where appropriate, a reserve capacity (for future pollutant loads).

VIEWSHED

An area of land, water or other physical features visible from a fixed vantage point.

WASTEWATER UTILITY

A publicly, privately, or investor-owned utility that collects and may treat sanitary wastewater, as regulated by the NJDEP.

WATER AVAILABILITY, CONDITIONAL

The amount of water availability allowed in a deficit HUC14 subwatershed, subject to certain mitigation requirements, as determined by the Highlands Council.

WATER AVAILABILITY, NET

The value assigned by the Highlands Council to a HUC14 subwatershed resulting from subtracting consumptive and depletive surface and groundwater uses from groundwater availability.

WATER CONSERVATION

Implementation of BMPs to ensure maximum water use efficiency and reduction in water use and losses; measures may include low-impact development techniques, water conserving fixtures, water valves, beneficial reuse systems and capture of stormwater.

WATER-DEPENDENT USES

Any use or activity that cannot physically function without direct access to the body of water along which it is proposed. An activity that can function on a site not adjacent to the water is not considered water dependent regardless of the economic advantages that may be gained from a waterfront location.

WATER QUALITY MANAGEMENT PLAN (WQMP)

A plan prepared pursuant to Sections 208 and 303 of the Federal Clean Water Act, 33 U.S.C. § 1251 et seq., (33 U.S.C. §§ 1288 et seq. and 1313 respectively) and the Water Quality Planning Act, N.J.S.A. 58:11A-1 et seq., including the Statewide WQMP, or Areawide or County WQMP as defined under N.J.A.C. 7:15.

WATER USE AND CONSERVATION MANAGEMENT PLAN

A planning document approved by the Highlands Council to ensure the sound use and management of water resources. Water use and conservation management plans document the current state of water availability and use in the subwatersheds of interest, set priorities for the use and protection of available water, and establish methods to reduce and, where feasible, eliminate net water availability deficits where they exist.

WELLHEAD

The well, borehole, and appurtenant equipment for a public community well, public noncommunity well, or nonpublic well within a cluster of nonpublic wells.

WHPA

Wellhead Protection Area.

ZONE OF SATURATION

A layer within or below the soil profile which is saturated with groundwater either seasonally or throughout the year.

[1] Editor's Note: Appendix A is included as an attachment to this chapter.

[2] Editor's Note: Appendix A is included as an attachment to this chapter.

[3] Editor's Note: Appendix B is included as an attachment to this chapter.

[4] Editor's Note: Appendix C is included as an attachment to this chapter.

§ 163-104 Establishment of Highlands districts.

A. HIGHLANDS PRESERVATION AREA AND PLANNING AREA. The Highlands Act establishes the Preservation Area and Planning Area of the Highlands Region. It describes the varied attributes of each and sets forth the major land use planning goals that pertain to the lands located within each. The Act defines the geographic extent of the Highlands Region to include the aggregated land area making up its constituent municipalities (N.J.S.A. 13:20-7a). It provides a physical delineation of the Preservation Area by use of a specific metes and bounds description (N.J.S.A. 13:20-7b), designating all remaining lands within the Highlands Region as the Planning Area. Chester Borough lies fully within the Highlands Planning Area.

(1) Highlands Planning Area. The Chester Borough Master Plan incorporates the Highlands Planning Area, inclusive of the goals applicable to it, as an integral component of the planning and land use policies of the municipality.

(2) Planning Area adopted. The Planning Area, to the full extent of its limits within the Borough of Chester (being the entirety of the municipality) is herewith adopted and established as an overlay to municipal zoning.

(3) Highlands Center adopted. In accordance with NJ Highlands Council Resolution No. 2020-03, adopted January 16, 2020, and the provisions of the Highlands RMP, Chester Borough is a designated Highlands Center.

[Added 11-5-2020 by Ord. No. 2020-13]

(a) Boundary summary: Chester Borough is 100% Planning Area. The entirety of the Borough is contained within Chester Borough Highlands Center and depicted on the Zoning Map of the Borough of Chester, dated October 2020, which is on file in the office of the Borough Clerk in accordance with § 163-68A.

[1] Throughout the Chester Highlands Center, the policies applicable to the Existing Community Zone, as depicted on the Highlands RMP Land Use Capability Map (LUCM) shall apply throughout Chester Borough except to the extent areas in the Borough are designated Highlands Environmental Resource Zone (HERZ) as further described below.

(b) HERZ - Highlands Environmental Resource Zone(s). Within the Chester Borough Highland Center, 308 acres are designated Highlands Environmental Resource Zones (HERZ), as depicted on the Zoning Map of the Borough of Chester, dated October 2020, which is on file in the office of the Borough Clerk.

[1] The Highlands Environmental Resource Zone (HERZ) is a designated land area within the Chester Borough Highlands Center that contains environmentally sensitive resources. The HERZ replaces the Highlands Land Use Capability Map (LUCM) "Protection Zone" designations in Chester Borough.

[2] The delineation of the HERZ recognizes that a designated center, while generally suitable for future development and redevelopment, may contain areas of sensitive resources that may require additional protections. The Protection Zone policies identified herein below in this article are applicable within the HERZ.

[3] In Chester Borough, each HERZ is identified according to its features and is afforded appropriate planning and management as part of the comprehensive center planning.

[a] Within the HERZ, existing developed land uses in Chester Borough that are dependent upon individual on-site subsurface disposal systems (septic systems) shall be eligible for connection to the Borough's centralized wastewater collection and treatment system when capacity within those facilities becomes available. Such connections shall be consistent with the use and intensity of development on individual lots dependent upon individual on- site wastewater treatment systems in existence as of January 16, 2020.

B. HIGHLANDS ZONES AND SUB-ZONES. The Highlands RMP establishes three primary zones (the Protection Zone, Conservation Zone and Existing Community Zone) and four sub-zones (Wildlife Management Sub-Zone, Conservation Zone-Environmentally Constrained Sub-Zone, Existing Community Zone-Environmentally Constrained Sub-Zone and Lake Community Sub-Zone) each with its own purpose, application and development criteria. Delineation of Highlands Zones finds basis in the underlying natural resources, the extent of existing development and supporting infrastructure, and the potential to support new development and redevelopment. Highlands zones are intended to ensure that the density and intensity of future development and redevelopment do not exceed the capacity of the land, natural resources and existing infrastructure to support them. The Borough of Chester Master Plan incorporates the Highlands zones and sub-zones as an integral component of the planning and land use policies of the municipality. In keeping with the Land Use Plan of the Chester Borough Master Plan, the following Highlands zones and sub-zones are herewith established as overlays to existing municipal zoning:

(1) Protection Zone. The Protection Zone contains the highest quality natural resource value lands of the Highlands Region. Lands in the Protection Zone are essential to maintaining water quality, water quantity and sensitive ecological resources and processes and have limited or no capacity to support human development without adversely affecting overall ecological function. Land acquisition is a high priority for lands in the Protection Zone and development activities will be extremely limited. Any development will be subject to stringent limitations on consumptive and depletive water use, degradation of water quality, and impacts to environmentally sensitive lands and natural resources.

(2) Conservation Zone. The Conservation Zone consists of areas with significant agricultural lands interspersed with associated woodlands and environmental features that should be preserved when possible. The Conservation Zone is intended primarily for agricultural use and development, including ancillary and supporting uses and activities. Nonagricultural development activities will be limited in area and intensity due to infrastructure constraints and resource protection goals. Where nonagricultural development does occur it must be compatible with agricultural uses.

(3) Conservation Zone - Environmentally Constrained Sub-Zone. The Conservation Zone-Environmentally Constrained Sub-Zone consists of lands containing significant environmental features within the Conservation Zone that should be preserved and protected from nonagricultural development. Development activities will be limited and subject to stringent limitations on consumptive and depletive water use, degradation of water quality, and impacts to environmentally sensitive lands.

(4) Existing Community Zone. The Existing Community Zone consists of areas of concentrated development representing existing communities. These areas tend to have limited environmental constraints due to previous development patterns, and may have existing infrastructure that can support additional development or redevelopment. Where served by adequate supporting infrastructure, lands within the Existing Community Zone are suited to higher densities and intensities of development than other zones.

(5) Existing Community Zone-Environmentally Constrained Sub-Zone. The Existing Community Zone-Environmentally Constrained Sub-Zone consists of significant contiguous Critical Habitat, steep slopes and forested lands within the Existing Community Zone that should be protected from further fragmentation. They serve as regional habitat "stepping stones" to larger contiguous Critical Habitat and forested areas. As such, they are not appropriate for significant development, and are best served by land preservation and protection. Development is subject to stringent limitations on consumptive and depletive water use, degradation of water quality, and impacts to environmentally sensitive lands.

C. HIGHLANDS RESOURCE AND SPECIAL PROTECTION AREAS. The Highlands RMP establishes Highlands Resource Areas and Special Protection Areas, each delineated based on the existence of one or more significant Highlands resources or critical or sensitive environmental characteristics or features. The Borough of Chester Master Plan incorporates each of these areas to the extent of their physical limits within the municipality, and the specific policies, goals and objectives relating to their protection as an integral component of the planning and land use policies of the municipality. In keeping with the Borough of Chester Master Plan, the following Highlands Resource Areas and Special Protection Areas are herewith established as overlays to municipal zoning:

(1) Forest Resource Area. The Forest Resource Area contains high ecological value forest areas including forested areas having the least fragmentation which are vital to the maintenance of ecological processes. The Forest Resource Area includes forested areas characterized by one or more of the following forest integrity indicators: a contiguous forest patch of 500 acres or more; an area consisting of 250 contiguous acres or more of Core Forest; or areas accounting for 45% or more of mean total forest cover.

(2) Highlands Open Waters. Highlands Open Waters consist of all springs, streams including intermittent streams, wetlands, and bodies of surface water, whether natural or artificial, located wholly or partially within the boundaries of the Highlands Region, but not including swimming pools. Highlands Open Waters include seeps, lakes, ponds, and vernal pools, all categories (including springs, streams, and wetlands) as described and defined in the Borough of Chester Environmental Resource Inventory.

(3) Riparian Areas. Riparian Areas are areas adjacent to and hydrologically interconnected with Highlands Open Waters rivers and streams. They consist of flood-prone areas, wetlands, soils that are hydric, alluvial, or have a shallow depth to groundwater. Riparian Areas also include wildlife passage corridors within 300 feet of surface Highlands Open Waters features.

(4) Steep Slope Protection Area. The Steep Slope Protection Area is comprised of those portions of the municipality encompassing a minimum of 5,000 square feet of contiguous area, which are characterized either by grades of 15% or greater, or, if in a Riparian Area, 10% or greater. The Steep Slope Protection Area includes the following subclassifications:

(a) Severely Constrained Slopes. All lands having slopes of 20% or greater and lands within Riparian Areas having slopes of 10% and greater.

(b) Moderately Constrained Slopes. All forested non-Riparian Area lands having a slope of 15% to less than 20%.

(c) Constrained Slopes. All nonforested, non-Riparian Area lands having a slope of 15% to less than 20% and exhibiting one or more of the following characteristics: a) highly susceptible to erosion; b) shallow depth to bedrock; or c) a soil capability class indicative of wet or stony soils.

(d) Limited Constrained Slopes. All nonforested, non-Riparian Area lands having a slope of 15% to less than 20%, which are not highly susceptible to erosion, and do not have a shallow depth to bedrock or a soil capability class indicative of wet or stony soils.

(5) Critical Habitat. Critical Habitat is comprised of all land areas designated as Critical Wildlife Habitat, Significant Natural Areas, and Vernal Pools, including Vernal Pool buffers. Chester Borough contains only the first of these, Critical Wildlife Habitat, which is established as an overlay to municipal zoning. Critical Wildlife Habitat consists of those areas within NJDEP's Landscape Project Version 3 (or more recent version as amended) that are Landscape Rank 3 through 5. In addition, it includes areas that are designated Landscape Rank 2 and have a Highlands Conservation Rank of Critically Significant or Significant.

(6) Prime Groundwater Recharge Areas. Prime Groundwater Recharge Areas consist of those lands having the highest groundwater recharge rates within each HUC14 subwatershed (as indicated by analysis using the GSR-32 methodology of the New Jersey Geological Survey), and that cumulatively provide 40% of the total recharge volume for the subwatershed.

(7) Wellhead Protection Areas. Wellhead Protection Areas consist of those areas surrounding a public water system well, from which groundwater flows to the well and groundwater contamination, if it occurs, may pose a significant threat to the quality of water withdrawn from the well. Wellhead Protection Areas are composed of three tiers reflecting the time required for groundwater to flow into the well, as follows:

(a) Wellhead Protection Area Tier 1: that area of land within a Wellhead Protection Area (WHPA) from which the flow of groundwater to the well has a time of travel of two years.

(b) Wellhead Protection Area Tier 2: that area of land within a WHPA from which the flow of groundwater to the well has a time of travel of five years.

(c) Wellhead Protection Area Tier 3: that area of land within a WHPA from which the flow of groundwater to the well has a time of travel of 12 years.

(8) Agricultural Resource Area. The Agricultural Resource Area consists of those areas of the most concentrated and contiguous agricultural uses as determined based on the prevalence of active farms, contiguous farming units of 250 acres or more, and the presence of important farmland soils.

(9) Highlands Historic, Cultural and Archaeological Resources. Highlands Historic, Cultural and Archaeological Resources consist of those properties, sites and districts listed in the Highlands Historic, Cultural and Archaeological Resources Inventory. These include but are not limited to: all properties listed on the New Jersey or National Register of Historic Places; and all properties which have been deemed eligible for listing on the New Jersey or National Register of Historic Places; and all properties for which a formal opinion of the State Historic Preservation Office (SHPO) has been issued.

D. ADOPTION OF HIGHLANDS DISTRICT MAPS. All Highlands districts as set forth under § 163-104A through C, above, including the Planning Area (encompassing the whole of the municipality), all zones and sub-zones, resource areas and special protection areas, are hereby established by the designation, location and boundaries as set forth for each respectively, in the following maps, each of which is hereby declared to be a part of this Highlands Land Use Ordinance:

(1) Borough of Chester Highlands Planning Area, zones, and sub-zones: map entitled "Chester Borough Highlands Planning Area, Highlands Zones and Sub-Zones," dated May 25, 2016, depicting the Borough's Highlands Planning Area (whole of municipality) with delineation of Highlands zones and sub-zones, as provided by the Highlands Council (Exhibit 1[1]).

[1] Editor's Note: Exhibit 1 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(2) Highlands Resource and Special Protection Areas: series of maps depicting the Resource and Special Protection Areas listed at § 163-104C(1) through (9) above, and also including related features and areas as discussed and defined in § 163-106 of this article; dated May 25, 2016 (unless otherwise specifically noted), as provided by the Highlands Council.

(a) Forest Resource Area, Total Forest Area: map depicting that portion of the Borough's Highlands Area designated as Forest Resource Area [pursuant to § 163-104C(1) above] and identifying Total Forest Area (as defined at § 163-106A); map denoted Exhibit 2.[2]

[2] Editor's Note: Exhibit 2 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(b) Highlands Open Waters: map depicting Highlands Open Waters located wholly or partially within the Borough Highlands Area [pursuant to § 163-104C(2) above]; map denoted Exhibit 3.[3]

[3] Editor's Note: Exhibit 3 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(c) Riparian Area: map depicting Riparian Areas [pursuant to § 163-104C(3) above] located within the Borough; map denoted Exhibit 4.[4]

[4] Editor's Note: Exhibit 4 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(d) Steep Slope Protection Area: map depicting those portions of the Borough having 5,000 square feet or more of contiguous surface area in steep slopes [pursuant to § 163-104C(4) above]; map denoted Exhibit 5.[5]

[5] Editor's Note: Exhibit 5 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(e) Critical Wildlife Habitat: map depicting those portions of the Borough designated as Critical Wildlife Habitat [pursuant to § 163-104C(5) above]; map denoted Exhibit 6.[6]

[6] Editor's Note: Exhibit 6 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(f) Prime Groundwater Recharge Area, Wellhead Protection Areas: map depicting those portions of the Borough designated as Prime Groundwater Recharge Areas [pursuant to § 163-104C(6) above]; and the location of public water system wells within the Borough and the associated wellhead protection tiers surrounding them (pursuant to § 163-104C(7) above); map denoted Exhibit 7.[7]

[7] Editor's Note: Exhibit 7 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(g) Agricultural Resource Area: map depicting those lands of the Borough designated as Agricultural Resource Area [pursuant to § 163-104C(8) above]; map denoted Exhibit 8.[8]

[8] Editor's Note: Exhibit 8 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(h) Highlands Historic, Cultural and Archaeological Resources: map depicting properties located within the Borough that are listed in the Highlands Historic, Cultural, and Archaeological Resources Inventory [pursuant to § 163-104C(9) above]; map denoted Exhibit 9.[9]

[9] Editor's Note: Exhibit 9 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

E. INTERPRETATION OF DISTRICT MAPS BOUNDARY LINES. All Highlands district maps, as set forth at § 163-104D above, have been developed by the Highlands Council using Geographic Information System (GIS) digital data. The provisions herein shall apply to the interpretation and use of all Highlands district maps and the boundary lines they specify.

(1) Municipal boundary lines. The Highlands Act relies upon municipal boundary lines to designate the limits of the Highlands Region. The Highlands Council dataset establishing municipal boundary lines was created by dissolving parcel level polygons (GIS) for each of the 88 municipalities within New Jersey Highlands. Parcels from the following counties have a general accuracy of plus or minus five feet: Bergen, Passaic, Somerset, Sussex, and Warren. Data from Hunterdon and Morris were provided by the counties and may have a different accuracy level. This dataset is for representative purposes only. Where the specific delineation of any municipal boundary line comes into question, municipal information such as metes and bounds surveys shall be relied upon for any final determination.

(2) Highlands zones, sub-zones, Resource Areas, Special Protection Areas. The boundaries delineated for all Highlands zones, sub-zones, Resource Areas, and Special Protection Areas were developed by the Highlands Council based on the factors noted in the description of each, above. Further discussion is provided in the Chester Borough Environmental Resource Inventory and in the Highlands Element of the Chester Borough Master Plan.

(3) Mapping conflicts. In the event of a conflict concerning the location of any Highlands District boundary line, the delineations provided by the Highlands Council as adopted herein shall be determinative. Modifications may be requested of the Highlands Council through submittal of an RMP update, map adjustment, or Highlands Center designation in such manner as required by the Highlands Council, or as specifically provided otherwise in this article. In the event of a conflict concerning the delineation of any parcel plotted by the Highlands Council using GIS software, a current property survey shall be determinative.

§ 163-105 Highlands zone district regulations.

A. APPLICABILITY. The provisions of this article modify the regulations applicable to the underlying municipal zoning districts, with specific regard to permitted uses, conditionally permitted uses, prohibited uses, and densities and intensities of development.

B. USE REGULATIONS. All principal and accessory uses permitted or conditionally permitted by the underlying municipal Zoning Ordinance shall remain in effect as provided therein, except to the extent that such uses may be modified or eliminated by the provisions of this section. Any and all principal and accessory uses prohibited by the underlying Zoning Ordinance shall remain prohibited as provided therein, unless specifically designated as a permitted use by the provisions of this section. The lists of permitted, conditionally permitted and prohibited uses of the underlying Zoning Ordinance are herewith amended as necessary to provide for the use allowances and use restrictions that follow.

(1) Permitted uses. The permitted uses applicable to that portion of any municipal zoning district overlain by the Highlands district classifications listed below shall be modified in accordance with the provisions that follow. In addition, any use permitted by the underlying zoning that is cited at Subsection B(2) or (3) below shall be amended in accordance with the provisions set forth therein.

(a) Agricultural Resource Area.

[1] With the exception of any forested portion of the Agricultural Resource Area that is also designated as a Forest Resource Area, permitted principal uses shall be supplemented to include the agricultural and horticultural uses (defined at § 163-103B) specified at § 163-106H(3), below. Accessory uses permitted in conjunction with these uses shall include ancillary, incidental or otherwise related supporting uses and the accessory structures devoted to such uses.

[2] The permitted principal residential use for any underlying municipal zoning district which permits single-family residential development as a principal use shall be restricted solely to residential cluster development in accordance with the residential cluster development standards as set forth at § 163-108A, below. This provision shall apply only if the minimum threshold requirements for residential cluster development pursuant to § 163-108A(6) can be satisfied. Where the minimum threshold requirements of § 163-108A(6) cannot be satisfied, permitted principal residential uses shall remain as permitted by the underlying municipal zoning ordinance.

[3] Permitted principal uses shall include the continuance of any lawfully existing residential use permitted by the underlying municipal Zoning Ordinance as of the effective date of this article.

(2) Conditional uses. Any use conditionally permitted by the underlying zoning that is cited at § 163-105B(1) above or § 163-105B(3) below shall be amended in accordance with the provisions set forth therein.

(3) Prohibited uses.

(a) Prime Groundwater Recharge Area, Wellhead Protection Area. The following principal or accessory uses and structures related or devoted to such uses, where otherwise permitted by the underlying municipal Zoning Ordinance, are expressly prohibited from the Prime Groundwater Recharge Area and from Wellhead Protection Area Tiers 1 and 2:

[1] Landfills;

[2] Facilities for the permanent storage or disposal of hazardous wastes, industrial or municipal sludge or radioactive materials, including solid waste landfills;

[3] Collection and transfer facilities for hazardous wastes, solid wastes that contain hazardous materials, and radioactive materials; and

[4] Industrial treatment facility lagoons.

(b) Wellhead Protection Area, Tier 1. Any principal or accessory use, or structure related or devoted to such use, which is designated by the Highlands Council as a major or minor potential contaminant source (PCS) (see Appendix B and Appendix C[1]), where otherwise permitted by the municipal ordinance, is expressly prohibited from that portion of any Tier 1 Wellhead Protection Area lying within 200 feet of the wellhead.

[1] Editor's Note: Appendix B and Appendix C are included as attachments to this chapter.

C. DENSITY AND INTENSITY OF DEVELOPMENT. The provisions of this section are intended to ensure that development occurs at densities and intensities that are appropriate to the water supply and wastewater treatment options available to support it. These provisions shall serve as a check on the various density/intensity provisions of the underlying Zoning Ordinance, which shall remain in effect to the extent not specifically in conflict with these provisions. The density/intensity allowances of the underlying Zoning Ordinance provisions reflect the intents and purposes set forth for the municipal zoning districts as established by the Borough of Chester Master Plan and the effectuating Zoning Ordinances. They define and support the intended character and patterns of development for each district, setting forth the relationship between built form in a district and the lot or lots on which it is situated. The provisions of this section relate solely to ensuring that such development: a) does not exceed the capacity of the land, resources and infrastructure available to support it; and b) is designed to minimize land disturbance and protect natural resources.

(1) Use of terms. For purposes of these provisions, density of development standards refer to requirements of the underlying Zoning Ordinance that regulate the permitted number of dwelling units per acre of land, whether specifically defined as density standards or set forth as minimum lot size requirements for application to specific zoning districts. Intensity of development standards refer to those requirements used to define the relationship between the permitted extent, form and location of development of a lot, to the size, shape and configuration of the lot on which it is situated (e.g., floor area ratio, building coverage, building height, yard setbacks, number of stories).

(2) Base mapping. Base maps regarding water availability and wastewater treatment capacity appear in the technical information provided in the conservation and utility services plans of the Borough of Chester Master Plan Highlands Element. These maps are combined into one for purposes of this article, denoted as Exhibit 10[2] and herewith adopted and incorporated, as titled: "Net Water Availability by HUC14 Subwatershed, Highlands Domestic Sewerage Facilities, Public Community Water Systems."

[2] Editor's Note: Exhibit 10 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Development subject to water availability. Any proposed increase in the demand for water supply averaging 6,000 gallons per day or more, deriving from groundwater sources or from surface water sources that are not associated with a NJDEP-approved safe yield, shall be accompanied by a finding of sufficient water capacity, which finding shall be issued by the Highlands Council. This provision shall apply to all development as defined at § 163-103B, expressly including changes in use and modifications to existing uses. Specific requirements pertinent to new development reliant upon groundwater supplies may be found at § 163-106E. For purposes of determining net increases in water demand associated with modifications to existing uses pursuant to these requirements, the following unit/square footage figures shall apply as four-hundred-gallon-per-day equivalents:

(a) Residential uses (all types): one dwelling unit.

(b) Office and commercial uses: 2,400 square feet of floor area.

(c) Industrial (including warehousing/distribution) uses: 18,182 square feet of floor area (excluding process wastewater flow).

(4) Development served by septic systems. Development proposals involving new or increased demand for septic system capacity shall be regulated in accordance with this subsection. These provisions shall override any density, intensity, bulk, or other standard of the underlying Zoning Ordinance that would otherwise permit a septic system density or use of septic system yield in excess of that as provided herein. These provisions shall apply equally in the case of any agricultural or horticultural development application proposing three or more residential dwelling units (including accessory dwelling units) served by individual on-site septic system(s). Nothing herein shall be deemed to apply to the replacement or repair of an existing septic system, however.

(a) Septic system density allowances. Septic system density (gross acres per septic system) shall not exceed the following Highlands Council allowances, for each Highlands zone and sub-zone:

[1] Existing community zone (and sub-zones): eight acres/septic system.

[2] Conservation zone (and sub-zones): nine acres/septic system.

[3] Protection zone (and sub-zones): 23 acres/septic system.

(b) These allowances indicate the minimum acreage required per septic system, where that system is designed for a one-family household generating a maximum flow of 300 gallons of wastewater per day. The resulting acreage shall be applied as the minimum average acreage necessary to support every 300 gallons of daily wastewater flow generated by any proposed use where the unit/square footage figures below shall be applied as three-hundred-gallon-per-day equivalents.

(c) Equivalent yields. The following unit/square footage figures shall be applied as three-hundred-gallon-per-day equivalents:

[1] Residential uses (all types, except as provided below): one dwelling unit.

[2] Deed-restricted senior citizen residential units, or mobile home parks with dwelling units less than 500 square feet in size: 1.5 dwelling units.

[3] Office and commercial uses: 2,400 square feet of floor area.

[4] Industrial (including warehousing/distribution) uses: 18,182 square feet of floor area (excluding process wastewater flow).

[5] Specific nonresidential uses by facility type. In lieu of Subsection C(4)(c)[3] or [4], above, three-hundred-gallon-per-day equivalents may be computed based on the average sewage volumes provided in Appendix E, from N.J.A.C. 7:9A-7.4.

(d) Floor area. For the purposes of this subsection, floor area shall comprise the area of each floor of a building lying within the inside perimeter of its exterior walls excluding vent shafts, courts, and unfinished areas such as basements or attics having ceiling heights less than that required for habitable space under the building code.

(e) Additional septic system requirements. In addition to the requirements above, individual subsurface sewage disposal systems or equivalent disposal units shall satisfy all standards for design, installation, and maintenance as set forth in any applicable Borough of Chester health ordinance and any related and applicable regulatory requirements of other agencies having jurisdiction.

(5) Development served by existing or extended utility infrastructure. Where lots proposed for development are served by existing public water and wastewater utility infrastructure having sufficient available capacity, the density and intensity of new development shall be consistent with all requirements of the underlying municipal Zoning Ordinance. For purposes of this provision, "existing" water and wastewater utility infrastructure refers to that, either: a) lawfully constructed and operational; or b) approved for construction in an Existing Community Zone (excluding the Constrained Sub-Zone) under an areawide water quality management plan.

(6) New or extended utility infrastructure.

(a) Protection Zone, Conservation Zone, and Environmentally Constrained Sub-Zones. New, expanded or extended public water systems, wastewater collection and treatment systems, and community on-site treatment facilities are permitted only where approved by the Highlands Council.

(b) Existing Community Zone (excluding Environmentally Constrained Sub-Zone). Expansion or creation of public water systems, wastewater collection and treatment systems, and community on-site treatment facilities are permitted: to serve lands which are appropriate for designated TDR receiving zones, infill development, or redevelopment; to address public health and safety; or to serve new areas for development; all of which address all other requirements of this article. (See applicable provisions at § 163-107F to G, below.)

(7) Development served by new or extended utilities. Where new development proposed in the Highlands Area will not rely upon installation of septic systems, but will be served by new or extended public water systems, wastewater collection and treatment systems, or community on-site treatment facilities, such development shall be in compliance with any conditions of approval required by the Highlands Council or the NJDEP, as applicable, in connection with amendment of the Areawide Water Quality Management Plan.

§ 163-106 Highlands resource regulations.

A. FOREST RESOURCES.

(1) Findings. Forests are a defining visual and functional feature of the Highlands Region. Forests provide habitat and sustenance for a diverse array of plants and animals and are essential to maintaining biodiversity. Forests protect against soil erosion, provide filtration for groundwater recharge, and assist in protecting stream water quality. Forests retain moisture and sequester atmospheric carbon, thus helping to stabilize weather patterns and mitigate global warming. Forested areas of the municipality offer important recreational resources, contribute to its unique scenic quality, and when managed sustainably, can provide a long-term source of wood and wood products.

(2) Total Forest Area. All portions of the municipality identified by the Highlands Council as containing forest (as defined at § 163-103B) appear as Total Forest Area in the map titled "Forest Resource Area, Total Forest Area," (Exhibit 2[1]), adopted and incorporated as a component of this article pursuant to § 163-104D, above. The Total Forest Area includes forested portions of lands designated as Forest Resource Area, as provided at § 163-104C(1), above.

[1] Editor's Note: Exhibit 2 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Clear-cutting prohibited. Clear-cutting is prohibited in any forested portion of the municipality, whether the affected lands are delineated as Total Forest Area or Forest Resource Area, or consist of lands containing upland forest, as determined under the procedures provided at Appendix A.[2]

[2] Editor's Note: Appendix A is included as an attachment to this chapter.

(4) Standards. Disturbance (as defined at § 163-103B) of any forested portion of the municipality shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the following requirements have been satisfactorily addressed:

(a) Demonstration that the proposed disturbance can neither be avoided nor reduced in extent, while adequately providing for a proposed use that otherwise addresses the requirements of this article;

(b) Incorporation of low-impact development techniques (see § 163-107B) appropriate to the activity or development project proposed;

(c) For any proposed disturbance of 1/2 acre or more, other than that associated with the maintenance of a legally preexisting use or structure (expressly excluding the expansion of any such use or structure), submission, approval and implementation of a forest mitigation plan designed to minimize the extent of such disturbance, protect forest areas adjacent or proximate to the disturbance area, and mitigate for loss of trees or other forest vegetation removed during the course of such disturbance; and

(d) Notwithstanding the preceding provisions, in the case of any proposed disturbance that by definition constitutes deforestation, submission, approval and implementation of a forest mitigation plan designed to minimize the extent of deforestation, protect forest areas to remain, and restore or mitigate for forest area loss.

(5) Forest impact reports required. Any application proposing a disturbance requiring a forest mitigation plan pursuant to § 163-106A(4) above shall be accompanied by a forest impact report containing at minimum, the items listed in this subsection.

(a) All forest impact reports.

[1] A map of upland forest area located on or within 500 feet of the subject property, as determined in accordance with Appendix A.[3] A map indicating any on-site areas designated as Forest Resource Area or Total Forest (Exhibit 2[4]). Where access is not available to adjacent properties, the municipal Environmental Resource Inventory and any updated Highlands Council GIS data delineating the Forest Resource Area and Total Forest may be relied upon for off-site forest identification.

[3] Editor's Note: Appendix A is included as an attachment to this chapter.

[4] Editor's Note: Exhibit 2 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

[2] A description of the nature, density and intensity of the proposed use or activity.

[3] A plan indicating the extent of the forest disturbance area, identifying the number, location, species and, for trees of greater than six inches in caliper (measured at 4.5 feet above grade level), the caliper of any trees proposed for removal.

[4] A description of the site alternatives analysis undertaken to, in this order: a) avoid forest disturbance; b) minimize forest disturbance; and c) ensure that any forest disturbance that cannot be avoided results in the least impact.

[5] A description of the low-impact development practices to be used to minimize the disturbance area and its impact; design details to be indicated in development plans, if applicable.

[6] If the applicant proposes site-specific forest information that differs from mapped forest resources in Exhibit 2,[5] including information based on the method in Appendix A,[6] it must be provided in a format and with sufficient information that the findings may be submitted for verification by the Highlands Council as an RMP update.

[5] Editor's Note: Exhibit 2 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

[6] Editor's Note: Appendix A is included as an attachment to this chapter.

[7] An analysis of the effects (direct and indirect) of the proposed use or activity upon forests, including forest areas adjacent and proximate to the disturbance area.

(b) Deforestation impact reports. In addition to the items required above for all forest impact reports, any application proposing disturbance that, by definition (see § 163-103B), constitutes deforestation, shall include:

[1] A description of the area surrounding the subject property within a one-half-mile radius.

[2] A map of all forest resources, as described in the Environmental Resources Inventory, within a one-half-mile radius of the property, including any areas designated as Forest Resource Area or Total Forest (Exhibit 2[7]). Highlands Council interactive website mappings may be utilized to address this requirement in the event the affected land area extends into adjoining municipalities.

[7] Editor's Note: Exhibit 2 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

[3] A field survey and description of the local ecological community type(s) on the site and a description of the surrounding, macroscale ecological community type(s) of which the property is part.

[4] An inventory of forest community composition and stand structure. The inventory shall include a description of vegetation species richness, vegetation species composition, stand density and basal area, connectivity with surround forested lands, and the survey method.

[5] An impact analysis documenting and describing any increase in forest fragmentation, creation of forest edge, disruption of forest area on steep slopes or riparian areas, or disruption of core forest areas that will occur as a result of the proposed use or activity.

(6) Forest mitigation plans. All forest mitigation plans must be prepared by a State of New Jersey approved forester or other qualified professional. A forest mitigation plan must include each of the components listed herein.

(a) Mitigation priority area map: priority areas are forested locations within the site having the highest ecological value to be targeted for conservation, restoration, or mitigation, including such areas as:

[1] Highlands Open Waters and buffers.

[2] Riparian Areas, including floodplains and flood-prone areas.

[3] Critical Habitat.

[4] Steep slopes and ridgelines.

[5] Core forests and contiguous forest patches.

(b) Protection plan: a plan providing the proposed methodology appropriate to and by which the applicable mitigation priority areas will be protected throughout the period of forest disturbance and thereafter.

(c) Forest protection plan: a plan incorporating preconstruction and construction best management practices to ensure the well-being of forest areas adjacent or proximate to the disturbance area. Such plans shall include prescribed limits of disturbance to be mapped, field marked, and provided with protective fencing prior to the start of any construction activity. Plans shall indicate installation of tree protection fencing along the dripline of trees to be protected, with instructions barring encroachment by machinery or heavy equipment of any kind, and requiring regular inspection and maintenance of fencing throughout the construction period.

(d) Mitigation description: a description of the proposed forest restoration, tree planting plan or other mitigation initiative proposed to provide equivalent or enhanced forest ecosystem benefit in consideration of the extent and type of disturbance or deforestation that would result if the use or activity is approved.

(e) Planting plan: a detailed plan indicating the specific plantings proposed for restoration, reforestation or mitigation, including size, species, quantity, location, separation distances, planting details, deer and pest management protections, and maintenance plans.

(f) Maintenance agreement: a minimum three-year maintenance agreement that outlines caretaking responsibilities of the applicant once the proposed planting has been completed. The maintenance agreement must include monitoring of newly planted stands, provide for protection devices in working order for three years, and ensure at least a 75% survival rate after three years.

B. HIGHLANDS OPEN WATERS AND RIPARIAN RESOURCES.

(1) Findings.

(a) Highlands Open Waters (Exhibit 3[8]) include all springs, streams (including intermittent streams), wetlands and bodies of surface water, whether natural or artificial (excluding swimming pools), located wholly or partially within the municipality. Highlands Open Waters contribute to the water resources of the Highlands Region, and ultimately to the water supply of millions of New Jersey citizens. They are essential to the ecologic function of the plant and animal communities that depend upon them for survival. Highlands Open Waters are also an important physical feature of the Borough of Chester, contributing to its character, aesthetics, history and development, and to its recreational opportunities.

[8] Editor's Note: Exhibit 3 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(b) Protection of Highlands Open Waters is vital not only to the municipality, but to the Highlands Region and the State of New Jersey. The provision or preservation/enhancement of buffer areas adjacent to Highlands Open Waters is an integral component to ensuring such protection. Key functional values that buffers provide or contribute to include but are not limited to: habitat for flora and fauna, stormwater and floodwater retention and filtration, water quality protection, temperature moderation, aquatic ecosystem integrity and channel integrity. Highlands Riparian Areas (Exhibit 4[9]) are lands associated with and bordering on Highlands Open Waters, often extending beyond Highlands Open Water buffers. These lands are likewise essential to providing critical hydrologic, ecologic and pollutant attenuation functions for Highlands Open Waters. Riparian areas moderate fluctuations in water temperature, help maintain groundwater recharge and stream base flow, stabilize stream banks, and provide flood storage areas. During high flow or overland runoff events, riparian areas reduce erosion and sediment loads to surface water and remove excess nutrients and contaminants from floodwater. Riparian areas also provide habitat for a variety of animal species and support terrestrial and aquatic food webs through deposition of woody debris.

[9] Editor's Note: Exhibit 4 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(c) It is in the interest of the local community, the Highlands Region, and the State of New Jersey that the Highlands Open Waters of the Borough of Chester, including associated buffers and Riparian Areas, receive the highest level of protection possible. The map of Highlands Riparian Areas (Exhibit 4[10]) includes all Highlands Open Waters and associated flood-prone areas, riparian soils and wildlife corridors.

[10] Editor's Note: Exhibit 4 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(2) Highlands Open Waters protection buffer. All Highlands Open Waters shall include a minimum three-hundred-foot-wide protection buffer, as measured from the edge of the discernible bank of the Highlands Open Waters feature, or from the center line where no discernible bank exists. These buffers are included in the map of Highlands Open Waters with respect to streams, rivers, ponds, lakes and reservoirs. With respect to wetlands and other Highlands Open Waters features not mapped in Exhibit 3[11] (e.g., seeps, springs), each shall include a three-hundred-foot-wide protection buffer measured from a delineated wetlands line described in a letter of interpretation (LOI), or from a field-delineated boundary line for other features.

[11] Editor's Note: Exhibit 3 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Highlands Open Waters buffer standards. Highlands Open Waters buffers shall be maintained in their undisturbed or preexisting condition, unless a disturbance is approved in accordance with the provisions of this section.

(a) Preexisting structures or improvements. Any lawfully preexisting structure or improvement located within a Highlands Open Waters protection buffer area as of the effective date of this article may remain and be maintained or rehabilitated, provided that the existing area of disturbance attributed to or associated with such structure or improvement shall not be increased.

(b) Agricultural and horticultural land uses. For purposes of this section, existing agricultural and horticultural uses, whether or not under active management or operation, shall not be included in any assessment of "previously disturbed" buffer areas with regard to proposals for nonagricultural development.

(c) Approvals subject to outside agency approvals. Approval of any application involving the disturbance of a Highlands Open Waters buffer pursuant to this section shall not be construed to relieve the applicant from the applicable rules, regulations or legal requirements of any other agency having jurisdiction over such buffers, including but not limited to: the NJDEP (e.g., Freshwater Wetland Rules, N.J.A.C. 7:7, Stormwater Management Rules, N.J.A.C. 7:8, Flood Hazard Area Rules, N.J.A.C. 7:13, NJPDES Rules, N.J.A.C. 7:14A); a Soil Conservation District pursuant to its authority under New Jersey Soil Erosion and Sediment Control Act Rules, N.J.A.C. 2:90; or any county or other regional entity having authority pursuant to a regional stormwater plan adopted by NJDEP under N.J.A.C. 7:8 and N.J.A.C. 7:15.

(d) Municipal stormwater management requirements. Where the provisions of this section are in conflict with the provisions of an adopted municipal stormwater management ordinance, the more restrictive of the two shall apply.

(e) Stream corridor protection/restoration plan. Where the provisions of this section are in conflict with the provisions of an adopted stream corridor protection/restoration plan, the provisions of the adopted plan shall override.

(f) Protection buffer expansion. The provisions of this section shall not be construed to preclude the imposition of a wider protection buffer requirement where site-specific analysis and evaluation by a qualified professional indicates that such expansion is essential to the protection of Highlands Open Waters, associated Riparian Areas, or the habitat of water or wetlands-dependent species (particularly in the case of rare, threatened or endangered species) located therein.

(g) Disturbance limitations. Disturbance is prohibited within all Highlands Open Waters and adjacent three-hundred-foot buffers except for linear development, which shall be permitted only provided that there is no feasible alternative for the linear development outside the Highlands Open Waters or Highlands Open Water buffer. The provisions of this subsection shall apply until and unless overridden by ordinance provisions adopted pursuant to a Highlands Council-approved stream corridor protection and mitigation plan.

[1] To address the "no feasible alternative for linear development" standard, the applicant shall demonstrate that there is no other location, design or configuration for the proposed linear development that would reduce or eliminate the disturbance. For proposed linear development that would provide access to an otherwise developable lot, the applicant shall, in addition, show that:

[a] The proposed linear development is the only point of access for roadways or utilities to an otherwise developable lot; and

[b] Shared driveways are used to the maximum extent possible to access multiple lots.

[2] An alternative shall not be excluded from consideration under this subsection merely because it includes or requires an area not owned by the applicant that could reasonably be obtained, utilized, expanded or managed in order to fulfill the basic purpose of the proposed linear development.

[3] The reviewing municipal authority shall not approve any application pursuant to this subsection if, after review of the information provided to support an approval, it finds that there is a reasonable alternative to the proposed linear development.

(4) Riparian Area standards. Disturbance of any portion of a Highlands Riparian Area is prohibited except for linear development, which shall be permitted only provided that there is no feasible alternative for the linear development outside of the Riparian Area. All provisions of § 163-106B(3)(g) above shall apply with regard to the "no feasible alternative" standard. These provisions shall apply until and unless Riparian Area disturbances are otherwise authorized under implementing ordinance provisions adopted pursuant to a Highlands Council-approved Stream Corridor Protection and Mitigation Plan.

C. STEEP SLOPES.

(1) Findings.

(a) Disturbance of steep slopes can trigger soil erosion and sedimentation, resulting in the loss of topsoil. Steep slope disturbance can contribute to siltation of wetlands, lakes, ponds and streams, which damages and degrades wetland and aquatic habitats. Steep slope disturbance can also result in alteration of drainage patterns, which when severe, can result in land slumping and landslides. Protection of steep slope areas is essential to the safety and stability of the human and nonhuman environment. Avoiding disturbance of steep slopes protects surface water quality, plant and wildlife habitat, and habitat quality. It also protects ridgelines, hillsides, and mountainous features that provide variation in the landscape, contribute to scenic viewsheds, offer unique recreational opportunities, and in many instances, define the character of an area or region.

(b) The severity and extent of steep slopes, in conjunction with applicable soil characteristics and type and extent of land cover, all affect the potential for damages from the disturbance of steep slopes. The provisions of this section are intended to protect the citizens, buildings and structures, and the natural environment and living ecosystems of the community from harm due to disturbance of steep slopes.

(2) Applicability. The provisions of this section shall apply to the Steep Slope Protection Area (Exhibit 5[12]) and to any other portion of the municipality determined to consist of 5,000 square feet or more of contiguous steep slope(s) (as defined at § 163-103B). For purposes of making such determinations, slopes shall be calculated for every two-foot contour interval over the full extent of the existing slope features, regardless of the location of property or other jurisdictional boundary lines.

[12] Editor's Note: Exhibit 5 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Steep slope standards.

(a) Severely and moderately constrained slopes. Disturbance of severely constrained and moderately constrained slopes is prohibited, with the exception of that required in connection with a linear development. Such linear development, however, shall be permitted only in the event that there is no feasible alternative for such development outside of the severely constrained or moderately constrained slopes.

[1] To address the "no feasible alternative for linear development" standard, the applicant shall demonstrate that there is no other location, design or configuration for the proposed linear development that would reduce or eliminate the disturbance of severely constrained or moderately constrained slopes. For proposed linear development that would provide access to an otherwise developable lot, the applicant shall in addition, show that:

[a] The proposed linear development is the only point of access for roadways or utilities to an otherwise developable lot; and

[b] Shared driveways are used to the maximum extent possible to access multiple lots.

[2] An alternative shall not be excluded from consideration under this subsection merely because it includes or requires an area not owned by the applicant that could reasonably be obtained, utilized, expanded, or managed in order to fulfill the basic purpose of the proposed linear development.

[3] The reviewing municipal authority shall not approve any application pursuant to this subsection if, after review of the information submitted to support an approval, it finds that there is a reasonable alternative to the proposed linear development.

(b) Constrained or limited constrained slopes. Disturbance shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the application includes or satisfactorily addresses each of the requirements following:

[1] Demonstration that the proposed steep slope disturbance can neither be avoided nor reduced in extent, while adequately providing for the proposed use.

[2] Incorporation of low-impact development techniques (pursuant to § 163-107B) appropriate to both the proposed activity and the steep slope environment, designed to reduce the extent of disturbance areas, stabilize areas that are disturbed, provide for stormwater management, and protect adjacent areas during site construction.

[3] Development layout shall be designed to:

[a] Minimize the need for landform grading and retaining structures;

[b] Incorporate a cluster development format, where feasible, to minimize the extent of development on steep slopes; and

[c] Disturb steep slopes (where such disturbance cannot be avoided) having the minimum potential for slope instability.

[4] Site design shall:

[a] Incorporate stabilization techniques that emphasize bioengineering;

[b] Ensure minimized soil loss during and after construction through steep slope-appropriate soil erosion and sediment control techniques;

[c] Prevent direct discharge of stormwater into Highlands Open Waters features;

[d] Provide for control of stormwater velocity and volume such that no net increase in runoff rates occurs between pre- and post-conditions; and

[e] Provide for maximum protection of existing trees, woodlands and surrounding natural vegetated areas.

D. CRITICAL HABITAT.

(1) Findings.

(a) Habitat protection is critical to maintaining biodiversity and providing for the needs of rare, threatened and endangered plant and animal species. Biodiversity is the variety of plant species, animal species and all other organisms found in a particular environment, and is a critical indicator of ecological integrity. This article establishes one category of Critical Habitat, as set forth at § 163-104C(5), above. Critical Wildlife Habitat includes lands containing habitat for rare, threatened and endangered wildlife species.

(b) Protection of Critical Habitat is essential to the well-being of a wide variety of plants and animals making up the unique ecosystems of the Highlands Region. Such protection is vital to the survival of numerous rare, threatened and endangered species. Protection of Critical Habitat is in the interest of the Borough of Chester and the Highlands Region, as a whole, not only for its contributions to ecosystem stability and biodiversity, but for its role in the health and stability of the human environment, and its contributions to aesthetic values.

(2) Habitat conservation and management plan. Upon Borough of Chester adoption of a habitat conservation and management plan, which, inclusive of any accompanying ordinances, rules or regulations, shall be approved by the Highlands Council, all applications proposing disturbance of a Critical Habitat area shall be filed, reviewed and considered in accordance with the provisions and criteria provided therein.

E. WATER CONSERVATION AND DEFICIT MITIGATION.

(1) Findings. The water resources of the municipality are critical to supporting the life of the community. Groundwater supplies represent the primary source of potable water in the Highlands Region and provide base flow to the region's streams. The importance of ensuring the high quality and sustainable use of Highlands groundwater supplies cannot be overstated. The availability of clean water for human use is critical to the life and economic vitality of the municipality and the Highlands Region as a whole. The availability of water for ecological purposes is critical to sustaining the aquatic ecosystems of streams, ponds and lakes as well as the riparian flora and fauna that depend upon them. When water withdrawals exceed the rate of recharge, groundwater supplies diminish, making access more difficult, reducing reliability, and ultimately leading to loss of the potable water source. Overuse of groundwater reduces stream base flows, impairs ecological function and integrity, and threatens the long-term reliability of potable water supplies that the community depends upon. The provisions of this section are intended to protect groundwater supplies from depletion resulting from unsustainable use. Where groundwater supplies are already depleted, these provisions require measures to enhance and restore this vital resource.

(2) Applicability. The provisions of § 163-106E(3) below shall apply to all development within the municipality. The remaining provisions of this section shall apply to any development application proposing a new or increased use of potable or nonpotable water averaging 6,000 gallons per day or more, derived from: a) any groundwater source in a Highlands HUC14 subwatershed, whether through a public community or noncommunity water supply system well, a nonpublic well, or an individual private well; or b) any surface water source in a Highlands HUC14 subwatershed that is not associated with a safe yield determined by the NJDEP through a water allocation permit. Specifically excluded from these provisions [§ 163-106E(4) through (7)], are modifications or improvements to existing uses and structures that do not result in an increase in water demand by an average of 6,000 gallons per day or more.

(3) Water conservation requirements. All development proposals shall incorporate, as applicable, the following water conservation measures to promote sound resource use, reduce supply deficits, and reduce the need for additional utility infrastructure:

(a) Meet all applicable building code requirements for the use of water conservation fixtures and appliances in new or rehabilitated structures;

(b) Provide automatic controls based on rain sensors (or soil moisture) for all new and replacement lawn irrigation systems, as required by the electrical subcode at N.J.A.C. 5:23-3.16;

(c) Design all nonpotable irrigation water uses to ensure that only the necessary amounts of water are used to achieve optimum plant growth, to the maximum extent practicable;

(d) Provide for internal recycling or beneficial reuse of reclaimed water in new commercial development projects, to the maximum extent practicable;

(e) Rely on stormwater for irrigation purposes to the maximum extent practicable, including but not limited to methods recommended by the U.S. Green Building Council through its Leadership in Energy and Environmental Design (LEED) program;

(f) Reduce water losses to the maximum extent practicable, in the rehabilitation of on-site water supply utility infrastructure, through such means as application of American Water Works Association/International Water Association water loss analysis methods (AWWA Manual M-36 or most recent version).

(4) Net water availability. Net water availability has been calculated by the Highlands Council for each HUC14 subwatershed located within or partially within the municipality (Exhibit 10[13]). Expressed in million gallons per day (MGD), the values assigned to each HUC14 subwatershed derive from subtracting consumptive and depletive surface and groundwater uses for a baseline year, from total groundwater availability. Where net water availability figures are negative numbers, the subwatershed is identified as a current deficit area, meaning existing uses exceed sustainable supplies. The map of net water availability by HUC14 subwatershed provided at Exhibit 10[14] is herewith adopted and incorporated as a component of this article.

[13] Editor's Note: Exhibit 10 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

[14] Editor's Note: Exhibit 10 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(5) Conditional water availability. For subwatersheds designated as current deficit areas, the Highlands Council has assigned a limited amount of conditional water availability, the use of which is conditioned upon satisfying certain mitigation requirements. Jurisdiction over the use of conditional water availability lies solely with the Highlands Council and shall apply in the case of current deficit areas until such time as a water use and conservation management plan for such subwatersheds has been adopted and put into effect.

(6) Water use and conservation management plan. Where a Highlands Council-approved water use and conservation management plan has been established for a municipality, HUC14 subwatershed, or group of HUC14 subwatersheds, any development application involving the use of water derived from such subwatershed(s) shall be regulated fully in accordance with the requirements of such plan. Adherence to the provisions of an adopted water use and conservation management plan shall constitute satisfactory compliance with all of the provisions of this section, including those pertaining to net water availability and conditional water availability.

(7) Absence of water use and conservation management plan. In the absence of a Highlands Council-approved water use and conservation management plan for a municipality, HUC14 subwatershed, or group of HUC14 subwatersheds, any development application involving the use of water derived from such subwatershed(s) shall be subject to requirements of this subsection.

(a) Net water availability. The provisions of this subsection shall apply to any development application proposing the use of net water availability. These requirements shall apply regardless of whether such water is supplied from an on-site well or through a water supply utility.

[1] Highlands Council findings required. No application shall be deemed complete or considered for review by the applicable board until or unless the Highlands Council has determined that the proposed consumptive or depletive water use will not exceed the remaining net water availability for the source HUC14 subwatershed(s). Such finding shall be provided by formal notification from the Executive Director of the Highlands Council, indicating by reference to specified application submittals (as required by the Highlands Council) that the Highlands Council has reviewed the specific development proposal at issue, and authorizes the increased use of potable or nonpotable water therein specified.

[2] Findings determinative. Any application revised from that reviewed by the Highlands Council pursuant to Subsection E(7)(a)[1], above, shall in no case be approved by the reviewing board unless the proposed use of net water availability remains equal to or less than that authorized by the Highlands Council through its formal findings. Nothing herein shall be construed to preclude the applicant from seeking a revised Highlands Council determination as to net water availability, however.

(b) Conditional water availability. The provisions of this subsection shall apply to any development application proposing the use of conditional water availability. These requirements shall apply regardless of whether such water is supplied from an on-site well or through a water supply utility.

[1] Highlands Council findings required. No application shall be deemed complete or considered for review by the applicable board until or unless a finding has been issued by the Highlands Council indicating that: a) the proposed consumptive or depletive water use will not exceed the remaining conditional water availability for the source HUC14 subwatershed(s); b) that the applicant has correctly determined the associated mitigation requirement; c) that the proposed development plan will incorporate or otherwise provide for acceptable methods of deficit mitigation; and d) that the mitigation measures proposed by the applicant can be reasonably anticipated to meet the required level of mitigation. Such findings shall be provided by formal notification from the Executive Director of the Highlands Council, indicating by reference to specified application submittals (as required by the Highlands Council) that the Highlands Council has reviewed the relevant components of the development proposal and authorizes it to proceed to the municipal review authority.

[2] Findings determinative. Any application revised from that reviewed by the Highlands Council pursuant to Subsection E(7)(b)[1], above, shall in no case be approved by the reviewing board unless: a) the proposed use of conditional water availability remains equal to or less than that authorized by the Highlands Council through its formal findings; b) the proposed methods of deficit mitigation are consistent with those so approved; and c) the anticipated levels of mitigation are sufficient to meet the associated mitigation requirements. Nothing herein shall be construed to preclude the applicant from seeking a revised Highlands Council determination as to conditional water availability, however.

[3] Deficit mitigation requirements. Applicants proposing the use of conditional water availability shall comply with the deficit mitigation requirements herein.

[a] The mitigation requirement applicable to any development project derives from the Highlands Council Scaled Mitigation Requirements Table, provided below (Table 1). The figures represent the applicable recharge requirement as a percentage of consumptive/depletive water use.

Table 1. Scaled Mitigation Requirements
	Proposed Consumptive or Depletive Water Use (gpd)
Deficit (MGD)	<= 1,000	1,001 - 5,000	5,001 - 10,000	10,001 - 25,000	>25,000
0.0001-0.050	125%	125%	125%	150%	150%
0.051-0.100	125%	125%	125%	150%	150%
0.101-0.250	125%	125%	150%	150%	175%
0.251-0.500	125%	150%	150%	175%	200%
0.501-1,000	125%	150%	175%	175%	200%
1,000-7,100	150%	175%	175%	200%	200%

[b] Deficit mitigation must be provided within the same HUC14 subwatershed as from which the source conditional water availability derives. If the project and water source are not located in the same subwatershed, however, only mitigation measures that benefit the source HUC14 subwatershed may be utilized to mitigate the deficit.

[c] The approval of any application proposing off-site deficit mitigation measures, whether through enhanced recharge or offsets from water conservation, shall be subject to the receipt of approvals from the Highlands Council and any other entities having jurisdiction over the activities proposed at the off-site location (whether located within or outside of the municipality).

[d] On-site deficit mitigation measures, whether from enhanced recharge or offsets from water conservation shall be subject to the following criteria:

[i] Water conservation measures. Water conservation measures may be credited toward mitigation requirements only with respect to existing land uses with consumptive or depletive water uses. [Such measures must be incorporated into the design of any new improvements, in accordance with § 163-106E(3), above.] Approval of any application proposing such measures shall be conditioned upon implementation of the measures prior to receipt of any certificate of occupancy or approval for the project improvements. If conservation measures include such methods as reduced irrigation of landscaping, protective covenants (e.g., homeowner's association bylaws) or other such legal mechanisms must be established to ensure their enforceability.

[ii] Recharge measures. The applicant shall include the proposed mitigation measures in the project stormwater management plan, stormwater operation and maintenance manual, and applicable components of site design. The stormwater management plan and O&M manual shall achieve permanent maintenance and routine monitoring of the mitigation measure(s) so that the required rate of recharge is continuously achieved.

[e] Any application for which deficit mitigation requirements cannot be achieved shall not be approved by the reviewing authority. The applicant may modify any such proposal, however, to reduce the consumptive or depletive water uses to a level at which achieving deficit mitigation requirements is feasible. All applicants shall demonstrate compliance with these standards through submission of a deficit mitigation plan, as provided below.

[4] Deficit mitigation plans. All applicants proposing deficit mitigation shall prepare and submit deficit mitigation plans for approval which shall include the following elements:

[a] Detailed justification for the proposed conditional water availability use and documentation that the amount of consumptive or depletive use is minimized [including the conservation measures outlined in § 163-106E(3), above].

[b] Engineering plans and drawings of mitigation facilities proposed to provide the necessary mitigation in the source HUC14 subwatershed.

[c] Sufficient information to demonstrate that the mitigation measures are individually feasible and in the aggregate will meet or exceed the mitigation requirement.

[d] Sufficient information to substantiate that the facility will recharge the groundwater table such that it reasonably can be expected (e.g., using general groundwater flow models) to support aquifer recharge, or to support stream flow with a travel time in excess of one month.

[e] Proposed implementation schedule demonstrating compliance with the following time frame targets:

[i] Satisfaction of mitigation requirements within one year of issuance of building permit(s) if the consumptive or depletive water use is less than 20,000 gpd, on average.

[ii] Satisfaction of mitigation requirements within a longer time period for larger amounts, up to five years from issuance of building permit(s), but no later than upon initiation of the consumptive or depletive water use, except for projects that involve a combination of high current water deficits and large proposed consumptive and depletive water uses as shown in the bold areas of the table Scaled Mitigation Requirements (Table 1, above), in which case, on-site mitigation shall be successfully completed prior to initiation of the water use but may be implemented concurrent with on-site construction. Off-site mitigation shall be successfully completed prior to any on-site construction.

[iii] Mitigation requirements may be phased in keeping with the level of consumptive and depletive water use that actually occurs based on phased construction of a project.

[f] Proposed operation, maintenance and monitoring requirements to ensure that sufficient recharge is maintained over time. These requirements shall at a minimum be sufficient to comply with N.J.A.C. 7:8 stormwater maintenance requirements.

[5] Conditions of approval. As a condition of any approval of a development application, inclusive of the proposed deficit mitigation plan, pursuant to this subsection, the applicant shall:

[a] Demonstrate that the entity designated to implement the deficit mitigation plan is qualified and capable of carrying out the plan, regardless of the time frame involved.

[b] Provide proof of acceptance of all responsibilities for implementation of the deficit mitigation plan by the responsible entity.

[c] Provide a cost estimate for implementation of the deficit mitigation plan, inclusive of a 10% contingency.

[d] Provide performance and maintenance guarantees in accordance with all municipal and MLUL requirements in amounts as approved by the municipal engineer, sufficient to ensure the installation and implementation of all required deficit mitigation plan measures. Such guarantees shall be available to the municipality and, secondarily, to the Highlands Council for implementation of the necessary deficit mitigation measures should the applicant fail to properly implement the measures according to the deficit mitigation plan schedule. If the implementing entity is a public agency, the commitment must be in the form of a binding resolution or ordinance of the governing body, and the cost of implementation must be bonded to ensure sufficient resources.

[e] Ensure that the responsible entity shall report annually to the Highlands Council and the municipality regarding implementation of the deficit mitigation plan until fully implemented, unless reporting is achieved through effectuation of a water use and conservation management plan.

[f] Establish an ongoing system of such reporting which must operate until the relevant subwatershed is no longer in deficit, or until the reporting responsibility is absorbed into implementation of an approved water use and conservation management plan.

F. PRIME GROUNDWATER RECHARGE AREAS.

(1) Findings. Prime Groundwater Recharge Areas are those lands within a HUC14 subwatershed that most efficiently provide, in the aggregate, 40% of total drought recharge volume for the HUC14 subwatershed. Protection of such areas is vital to maintaining the quality and quantity of the groundwater resources upon which both human and nonhuman communities in the Highlands Region heavily rely. It is the intent of the provisions herein to ensure that Prime Groundwater Recharge Areas receive the highest possible protection from intrusion to protect both the recharge capacity that they provide and the quality of the groundwater supplies that they replenish.

(2) Applicability. The provisions of this section shall apply to any development application involving the Prime Groundwater Recharge Area (Exhibit 7[15]).

[15] Editor's Note: Exhibit 7 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Standards. Disturbance of Prime Groundwater Recharge Area (PGWRA) by any regulated development shall be permitted only upon a finding by the reviewing board or other applicable municipal authority that the proposal complies with the provisions of this subsection.

(a) Avoidance. The proposed disturbance cannot be avoided. Development shall not occur in Prime Groundwater Recharge Areas unless either the entirety of the subject property is located within a Prime Groundwater Recharge Area and thus cannot be avoided, or the disturbance represents the only viable alternate means to avoid Critical Habitat, Highlands Open Waters buffers, moderately constrained steep slopes, or severely constrained steep slopes, to the extent that these resources are also present upon the subject property.

(b) Minimization. The proposed disturbance cannot be minimized. Where total avoidance is not feasible, total recharge area disruption (i.e., alteration of natural recharge patterns or volumes) shall not exceed 15% of the Prime Groundwater Recharge Area located within the affected parcels, placed where feasible on those parts of the PGWRA having the lowest relative recharge rates and the least potential for aquifer recharge based upon site analysis.

(c) Low-impact development. The proposal incorporates low-impact development practices. Low-impact development practices (see § 163-107B) shall be used in the design of the development proposal to reduce total recharge disruption to the minimum feasible, within the 15% cap.

(d) Mitigation. The proposal includes a PGWRA mitigation plan. Any development application involving disturbance of a Prime Groundwater Recharge Area shall be accompanied by a mitigation plan, providing for an equivalent of 125% of preconstruction recharge volumes for that portion of the Prime Groundwater Recharge Area that will be disturbed. The recharge mitigation shall occur within the following areas, in order of priority: 1) the same development site to the maximum extent feasible; 2) the same HUC14 subwatershed; or 3) where no feasible option exists in the same HUC14 subwatershed, an interrelated HUC14 subwatershed approved by the Highlands Council.

(4) Potential contaminant sources. Where any use or structure classified as a major potential contaminant source (PCS) (as listed at Appendix B[16]) is proposed to be located or expanded within a Prime Groundwater Recharge Area, the standards of approval provided at § 163-106G(3), below, shall apply in addition to the preceding requirements.

[16] Editor's Note: Appendix B is included as an attachment to this chapter.

G. WELLHEAD PROTECTION.

(1) Findings. Protection of groundwater resources that directly provide water to potable water supply wells is vital to the public health, safety and welfare of the community. It is also of primary importance to ensure continued availability of clean drinking water to all that rely upon it. Through regulation of land use, physical facilities and other activities within Wellhead Protection Areas (WHPAs), the potential for groundwater contamination can be reduced by preventing the introduction and migration of pollutants into groundwater sources that supply water supply wells.

(2) Applicability. The provisions of this section shall apply to all proposed development activities in designated Wellhead Protection Areas (Exhibit 7[17]).

[17] Editor's Note: Exhibit 7 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Potential contaminant sources. Where any permitted use or structure classified as a major potential contaminant source (PCS) (as listed at Appendix B[18]) is proposed to be located or expanded within a Tier 1 Wellhead Protection Area, the standards of this subsection shall apply. As noted previously, these standards shall also apply to any major PCS proposed to be located or expanded in any portion of a Prime Groundwater Recharge Area. These conditions shall not be construed to waive or obviate any rules, regulations, or other requirements pertinent to such uses that may derive from outside agencies having jurisdiction, such as the NJDEP.

(a) Best management practices. All major PCS facilities shall be designed in a manner that prevents the unintentional discharge of toxic or hazardous pollutants to groundwater, surface water bodies, or the land surface, from all internal and external areas, including loading, storage, and transfer areas, in accordance with the provisions of this section.

[1] All portions or areas of a facility in which hazardous substances or hazardous wastes are stored, processed, manufactured or transferred outdoors, shall be designed so that the discharges of hazardous substances will be prevented from overflowing, draining, or leaching into the groundwater or surface waters.

[2] Containers in which regulated substances are stored must be clearly and visibly labeled and must be kept closed and sealed when material is not being transferred from one container to another.

[3] Wherever hazardous substances are stored, processed, manufactured or transferred outdoors, the design features shall include secondary containment and/or diversionary structures which may include but are not limited to any one or a combination of the following:

[a] Containers, dikes, berms or retaining walls sufficiently impermeable to contain spilled hazardous substances, for the duration of a spill event.

[b] Curbing.

[c] Gutter, culverts and other drainage systems.

[d] Weirs, booms and other barriers.

[e] Lined diversion ponds, lined lagoons and lined retention basins, holding tanks, sumps, slop tanks and other collecting systems.

[f] Drip pans.

[4] Secondary containment and/or diversionary systems, structure or equipment must meet the following standards:

[a] The system must block all routes by which spilled hazardous substances could be expected to flow, migrate, or escape into the groundwater or surface waters.

[b] The system must have sufficient capacity to contain or divert the largest probable single discharge that could occur within the containment area, plus an additional capacity to compensate for any anticipated normal accumulation of rainwater.

[c] In order to prevent the discharge of hazardous substances into groundwater, all components of the system shall be made of or lined with impermeable materials sufficient to contain the substance for the duration of a spill event. Such material or liner must be maintained in an impermeable condition.

[d] No manufacturing area, processing area, transfer area, dike storage area, or other storage area, or secondary containment/diversion system appurtenant thereto shall drain into a watercourse, or into a ditch, sewer, pipe or storm drain that leads directly or indirectly into a surface or subsurface disposal area, unless provision has been made to intercept and treat any spilled hazardous substances in an NJDEP-approved industrial wastewater treatment or pretreatment facility, or other NJDEP-approved facility.

[e] Outdoor storage of regulated substances in regulated containers and the containment structure must include a cover to minimize accumulation of water in the containment area and contact between precipitation and storage container(s).

[5] Catchment basins, lagoons and other containment areas that may contain hazardous substances shall not be located in a manner that would subject them to flooding by natural waterways.

[6] Stormwater shall be managed so as to prevent contamination of groundwater, and so as to be in accordance with applicable laws and regulations of the State of New Jersey, and of the municipality.

[7] All transfers of petroleum from delivery trucks and storage containers over five gallons in capacity shall be conducted over an impervious surface having a positive limiting barrier (e.g., berm, lip) at its perimeter.

(b) Compliance mechanisms. Any of the following permits and authorizations shall be considered equivalent to the best management practices of this article. As applicable to the PCS involved, these may also be submitted in lieu of an operations and contingency plan, as otherwise required under § 163-106G(3)(c), following.

[1] A NJPDES permit approved by NJDEP pursuant to N.J.A.C. 7:14A;

[2] An underground storage tank approved by NJDEP under N.J.A.C. 7:14B;

[3] A discharge prevention, containment and countermeasure plan (DPCC) approved by NJDEP pursuant to N.J.A.C. 7:1E;

[4] A hazardous waste remedial action approved by NJDEP pursuant to N.J.A.C. 7:26B, 7:26C, 7:26D or 7:26E, or by the United States Environmental Protection Agency pursuant to the Resource Conservation Recovery Act (RCRA) or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA);

[5] A hazardous waste facility approved by NJDEP pursuant to N.J.A.C. 26G;

[6] Approval by the SCD of a farm conservation plan or resource system management plan pursuant to N.J.A.C. 2:92 [see § 163-106H(4) below and Appendix D[19]];

[19] Editor's Note: Appendix D is included as an attachment to this chapter.

[7] A solid waste facility approved by NJDEP pursuant to N.J.A.C. 26H; and

[8] A high-density animal waste management plan, an animal waste management plan, or a comprehensive nutrient management plan, as appropriate, developed pursuant to N.J.A.C. 2:91.

(c) Operations and contingency plans. Unless one of the permits or approvals listed at § 163-106G(3)(b)[1] to [8] above is provided, or the applicant certifies that no potential contaminants will be stored, discharged, manufactured or used on site, as a condition of approval of any application involving a major PCS, the applicant shall prepare and obtain approval of an operations and contingency plan in accordance with the requirements herein. No certificate of occupancy or approval (as appropriate) for the development shall be issued until or unless the qualified professional authorized to administer these provisions verifies that the operations and contingency plan has been approved and is on file with the appropriate entities.

(d) Approval of operations and contingency plans. The proposed operations and contingency plan shall be submitted to the Board of Health (or equivalent acting authority), Fire Department, Police Departments and Office of Emergency Management, as applicable. These agencies shall review and make any appropriate recommendations for approval or modifications of the operations and contingency plan. The applicant shall incorporate the recommendations to produce a final document, for review by the designated municipal professional and each of the participating agencies. The designated municipal professional shall coordinate the agencies' responses to ensure that the final plan addresses all concerns of substance. Upon approval by the designated municipal professional, the plan shall be filed with all applicable entities and put into effect as indicated therein. In the event of any irreconcilable issue in developing or finalizing the plan, it shall be provided as proposed, to the reviewing board, along with the recommendations of the designated professional, the participating agencies, and the applicant and applicant's agents and professionals. A decision by the reviewing board shall be final.

(e) Required content of operations and contingency plans. An operations and contingency plan shall be developed, where required under this article, for each major PCS or group thereof (where multiple sources exist within a single facility owned and operated by a single entity) and shall address the following elements. The operations and contingency plan must demonstrate that the potential for a significant discharge is the lowest technologically feasible:

[1] Documentation of the applicable major potential contaminant sources existing and proposed for the site;

[2] Types and quantities of hazardous substances or wastes that may be used, discharged or stored on site;

[3] Means used to prevent the spillage, leakage or discharge of such materials;

[4] Means to be used to contain or remedy accidental spillage, leakage, discharge or migration of such materials from the site directly or indirectly into groundwater;

[5] At a minimum, utilize best management practices as defined by § 163-106G(3) and as specified by NJDEP and the United States Environmental Protection Agency, including but not limited to the regulations and guidance in the following areas: Discharge Prevention Containment and Countermeasures [N.J.A.C. 7:1E-4.2 (or most current)], Spill Prevention Control and Countermeasures [40 CFR 112.3 et seq. (or most current)], Stormwater and Non-Point Source Pollution Control Best Management Practices Manual [NJDEP, April 2004 (or most current)];

[6] Specific training of facility personnel to contain or remedy accidental spillage, leakage, discharge or migration of such materials from the site directly or indirectly into groundwater, or surface water bodies or the land surface that provide recharge to the underlying aquifer;

[7] Procedures including a contact list and phone numbers for notifying the appropriate administrative authorities, including but not limited to NJDEP, the local fire and police, local office of emergency management and the Board of Health, regarding any spillage or discharge of such materials; and

[8] Demonstration that the proposed facility is designed to employ best management practices to the maximum extent feasible.

(f) Confidentiality protections. Any information included in an operations and contingency plan which constitutes proprietary commercial or financial information, or is otherwise protected from disclosure under 7 CFR Part 205.501 and 205.504 or the Open Public Records Act, N.J.S.A. 47:1A-1 et seq., shall be held confidential by all local entities participating in its review or implementation, subject to the limitations set forth therein.

[18] Editor's Note: Appendix B is included as an attachment to this chapter.

H. AGRICULTURAL RESOURCES.

(1) Findings. The Highlands Planning Area contains fertile soils, receives plentiful rainfall, and is characterized by a moderate climate favorable to agricultural and horticultural production. The agricultural industry is vital to the state, the region and the community not only for local provision of agricultural products, but for the economic benefits associated with agricultural production and for maintenance of the rural character associated with agricultural lands. It is the intent of this section to promote sustainable agriculture (as defined at § 163-103B) in the municipality by ensuring the long-term sustainability of agricultural resources and the viability of the agricultural industry. These provisions are intended to ensure a healthy agricultural environment and a sufficient agricultural land base, by protecting farmland and farm soils, promoting farmland preservation, and providing the allowances necessary to permit and support farming and farm operations.

(2) Applicability. The provisions of this section apply to agricultural and horticultural uses in the municipality and to the lands of the Agricultural Resource Area (Exhibit 8[20]), specifically. The Agricultural Resource Area (ARA) consists of the areas of most concentrated and contiguous agricultural uses and contains major areas of important farmland soils.

[20] Editor's Note: Exhibit 8 is included in Appendix F , Exhibits, which appendix is included as an attachment to this chapter.

(3) Agricultural Resource Area.

(a) Agricultural and horticultural development. In accordance with the provisions of § 163-105B(1) above, permitted uses in the ARA (with the exception of any forested portions also designated as Forest Resource Areas) include agricultural and horticultural uses (as defined at § 163-103B). Accessory uses permitted in conjunction with such uses include ancillary, incidental or otherwise related supporting uses and the accessory structures devoted to such uses. The specific permitted uses and other applicable requirements pertaining to agricultural and horticultural development in the ARA include the following:

[1] Permitted uses and accessory uses.

[a] Any form of agriculture or horticulture as defined in § 163-103B above.

[b] Commercial agricultural pursuant to § 163-70M of the Borough Code.

[2] Bulk and other requirements.

[a] Horticultural uses. Minimum lot size: one acre.

[b] Agricultural uses:

[i] Minimum lot size:

[A] Three acres (see § 163-70M - agricultural uses that include maintaining or grazing of not more than one animal).

[B] Five acres (§ 163-70M - agricultural uses that include maintaining or grazing of two animals). One additional animal shall be permitted to be kept for each acre exceeding five acres.

[ii] Bulk requirements: in accordance with Schedule 1, Part 1, Schedule of Lot Area, Yard and Building Requirements[21] (see § 163-69) for the underlying zone in which the agricultural or horticultural use is located.

[21] Editor's Note: The Schedule is included as an attachment to this chapter.

[iii] Agricultural and horticultural uses shall be consistent with the density standards of § 163-105C above.

[iv] Permitted accessory structures: all those uses identified in § 163-70M(1) to (12), subject to the yard requirements found in Schedule 1, Part 1, Schedule of Lot Area, Yard and Building Requirements[22] (see § 163-69).

[22] Editor's Note: The Schedule is included as an attachment to this chapter.

[3] Other regulations. Approval of any application proposing agricultural or horticultural development pursuant to this subsection shall, in addition, be subject to the provisions of § 163-106H(4) through (6), below.

(b) Residential development. Pursuant to § 163-106B(1), above, where the underlying zoning permits residential development within any portion of the ARA, the only form of such development permitted is residential cluster development in accordance with the provisions of § 163-108A, below, provided the minimum thresholds [see § 163-108A(6)] can be satisfied. Where such thresholds cannot be met, the allowances for residential development provided in the underlying Zoning Ordinance apply to applications for such development, subject to all density and resource protection requirements of this article. Lawfully existing residential development in the ARA that does not meet the cluster development requirements of § 163-108A is permitted to continue; it remains under the regulations of the underlying Zoning Ordinance, and is not made nonconforming by the provisions of § 163-105(B(1).

(c) Other development. Where the underlying Zoning Ordinance provides for other permitted uses within the ARA, such uses shall remain as permitted uses, unless eliminated or reverted to a conditional or prohibited use by the other provisions of § 163-105B.

(4) Conditions of approval. The approval of any proposal for agricultural or horticultural development in the municipality is subject to the specific requirements listed at Subsection H(4)(a) through (c), below, which are enforceable by the Highlands Council. As a condition of any local approval, the owner or operator of the farm management unit or his/her agent shall be required to obtain a release from the Highlands Council indicating that these requirements have been or will, by formal agreement or other appropriate means, be satisfactorily addressed. This condition shall be satisfied only by submission of a copy of formal notice of such release issued by the Executive Director of the Highlands Council. No permit(s) shall be issued and no land disturbance in connection with the approval shall be permitted until or unless this condition has been satisfied.

(a) Farm conservation plan. The development and implementation of a farm conservation plan (prepared by the USDA NRCS, TSP, appropriate agent, or NJDA staff, and approved by the local SCD) is required as a condition of approval for any agricultural or horticultural development that would result in the increase, since the date of enactment of the Highlands Act (August 10, 2004), either individually or cumulatively, of new agricultural impervious cover of greater than 3% but less than 9% to the total land area of a farm management unit (as defined at § 163-103B above). Solar panels (as defined at § 163-103) shall not be included in any calculation of agricultural impervious cover pursuant to this subsection.

(b) Resource management system plan. The development and implementation of a resource management system plan (prepared by the USDA NRCS, TSP, appropriate agent, or NJDA staff, and approved by the local SCD) is required as a condition of approval for any agricultural or horticultural development that would result in the increase, since the date of enactment of the Highlands Act (August 10, 2004), either individually or cumulatively, of new agricultural impervious cover by 9% or greater to the total land area of a farm management unit (as defined at § 163-103B, above). Solar panels (as defined at § 163-103) shall not be included in any calculation of agricultural impervious cover pursuant to this subsection.

(c) Plan requirements. Any farm conservation plan required pursuant to this section shall be prepared in conformance with Sections III and IV of the June 1, 2005, NRCS New Jersey Field Office Technical Guide (available electronically at http://www.nrcs.usda.gov/technical/efotg/), as may be amended and supplemented by the NRCS, and shall include all items required under N.J.A.C. 2:92-3.1, for same (see applicable provisions at Appendix D[23]). Any resource management systems plan required pursuant to this section shall be prepared in conformance with all sections of the same guide, inclusive of all items required under N.J.A.C. 2:92-4.1, as also provided in Appendix D.[24]

[23] Editor's Note: Appendix D is included as an attachment to this chapter.

[24] Editor's Note: Appendix D is included as an attachment to this chapter.

(5) Right to farm. Nothing in these provisions or in the whole of this article shall be construed to alter or compromise the goals, purposes, policies and provisions of, or lessen the protections afforded to farmers by, the Right to Farm Act, P.L. 1983, c. 31 (N.J.S.A. 4:1C-1 et seq.), and any rules or regulations adopted pursuant thereto.

(6) Approvals subject to outside jurisdiction. The provisions of this section shall not be construed to alter or obviate the requirements of any other applicable state or county laws, rules, or regulations, including specifically N.J.A.C. 2:92, Agricultural Development in the Highlands, as promulgated by the New Jersey Department of Agriculture, or those of the SADC, the CADB, the Soil Conservation Districts, or the NJDEP.

I. HISTORIC, CULTURAL AND ARCHAEOLOGICAL RESOURCES.

(1) Findings. The historic, cultural and archaeological resources of the municipality form an essential component of its character and aesthetic quality. They preserve a part of the history of the Borough of Chester and provide a link to its past. They are representative of significant people, places and events in history and provide vital information about what life was like in the community in earlier times. Preservation of these resources is in the interest of the citizens of the Borough of Chester, the surrounding region, the State of New Jersey, and in many instances, the nation as a whole. These resources provide a rich source of information from which to learn about the growth and development of our communities, our culture, our science and technology, and our way of life. They provide an educational opportunity, contribute to the community's sense of place, and add context to our everyday lives. It is the intent of this section to provide for the protection and preservation of the historic, cultural and archaeological resources of the municipality.

(2) Applicability. The provisions of this section shall apply to any development application involving property which is located either among those identified as containing Highlands Historic, Cultural and Archaeological Resources at Exhibit 9[25] (and listed as such in the Highlands Element of the Master Plan), or which lies adjacent to any property containing or partially containing such resources. Nothing in this article shall relieve a property owner or applicant from development or demolition review procedures for historic properties.

[25] Editor's Note: Exhibit 9 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Standards and criteria.

(a) The standards and criteria for Highlands Historic, Cultural and Archaeological Resources shall apply to: 1) the Borough's mapped historic districts and sites; 2) those sites listed and detailed in the document entitled "New Jersey Historic Sites Inventory, Morris County Cultural Resources Survey," prepared by ACROTERION Historic Preservation Consultants for the Morris County Heritage Commission, funded through the Office of New Jersey Heritage, the County Freeholders and the F.M. Kirby Foundation, Inc., 1986/1987, all of which are proposed for listing in the Highlands Historic and Cultural Resources Inventory; 3) all properties listed on the State or National Register of Historic Places; 4) all properties which have been deemed eligible for listing on the State or National Register; and 5) all properties for which a formal State Historic Preservation Office (SHPO) opinion has been issued through 1986.

(b) See Article XI, Historic Preservation and Architectural Review, § 163-84 through § 163-87.1 of the Code of the Borough of Chester for review procedures.

(c) The first sentence of § 163-84B(1) is hereby supplemented and amended to read as follows (supplemental new language included in italics, thus):

"(1) Before any new construction or major alterations are made on any property or building within (a) the Borough's historic districts, sites and zones, (b) any building or property listed in the Borough's Historic Sites Survey entitled "New Jersey Historic Sites Inventory, Morris County Cultural Resources Survey," prepared by ACROTERION Historic Preservation Consultants and dated 1986/1987, (c) all properties listed on the State or National Register of Historic Places; (d) all properties which have been deemed eligible for listing on the State or National Register; and (e) all properties for which a formal State Historic Preservation Office (SHPO) opinion has been issued through 1986, the project must be approved by the Planning Board or Board of Adjustment."

§ 163-107 General regulations.

A. AFFORDABLE HOUSING. Nothing in this article shall be construed to waive, obviate, modify or otherwise exempt any covered development project, or any person proposing or involved in such project, from the applicable provisions of the municipal ordinances and any other regulations adopted consistent with the Fair Housing Act to ensure opportunity for low- and moderate-income housing. Neither shall the provisions of this article be construed to waive or exempt projects that include such housing, from adherence to the requirements of this article.

B. LOW-IMPACT DEVELOPMENT.

(1) Applicability. The following provisions shall apply to all development applications.

(2) Standards.

(a) Applicants shall demonstrate that the project design process incorporates conservation design planning, including the following steps:

[1] Preparation of an existing features and site analysis plan, including identification of Highlands resources and resource areas;

[2] Evaluation of site context through identification of the physical and community character of the surrounding area;

[3] Selection of open space conservation areas, where applicable, that maximize the retention of resource values, provide connections to existing trails, open spaces or greenways, and incorporate natural features and characteristics as site amenities;

[4] Establishment of development yield (e.g., residential, retail, office) and apportionment of septic system yield, net water availability, and water supply and sewer utility availability, as applicable, and in keeping with all density and intensity requirements of § 163-105C, above;

[5] Lay out of building lots, if applicable, and incorporation of low-impact development design techniques for site design, stormwater management and resource protection; and

[6] Incorporation of resource standards and smart growth guidelines.

(b) Development applications must achieve stormwater management in compliance with § 163-107D, below, including the municipal stormwater management ordinance[1] established in compliance with the municipal stormwater NJPDES permit under N.J.A.C. 7:14A and 7:8, and all applicable NJDEP standards and requirements.

[1] Editor's Note: See Ch. 204, Stormwater Management.

(c) Relief from the strict application of the provisions of the underlying municipal Zoning Ordinance applicable to site design shall be considered where necessary to provide for incorporation of smart growth principles and low-impact development techniques such as use of shared parking and driveway areas, biofiltration swales, rainwater capture and reuse, and reduced road or driveway widths. Where such deviations will minimize or eliminate adverse impacts to Highlands natural resources, these benefits shall be given significant weight in the analysis of approval criteria.

(d) The site preparation plan shall limit clearing, grading and soil compaction to the minimum required to construct the project in accordance with the approved plans, inclusive of area for construction equipment maneuvering, while ensuring protection of mature trees and habitat outside of the site development area.

(e) Landscaping shall use native, drought-tolerant (other than where used in rain gardens, biofiltration swales and other stormwater management facilities), disease-resistant plants, allowing for natural landscaping wherever feasible, and shall under no circumstances include invasive species.

(f) Building orientation and design shall be designed to take advantage of microclimate conditions, to the maximum extent feasible, to maximize solar gain for winter heating, and to minimize solar gain during high temperature summer conditions except where desirable for the construction of solar energy systems. Other energy-efficient features shall be considered and incorporated into site layouts and buildings, as appropriate.

(g) The applicant shall ensure reuse and recycling of building materials, to the extent possible, when development involves demolition.

(h) All low-impact development features shall be maintained through a monitoring and maintenance plan, with procedures for replacing such features as necessary.

C. CONSERVATION RESTRICTIONS.

(1) Applicability. In the event that a conservation restriction is required to effectuate the purposes of this article, the provisions of this section shall apply. Nothing herein shall be construed to preclude the imposition of conservation restrictions in the case of Highlands Resources, Resource Areas, or Special Protection Areas, where the reviewing board or other applicable authority finds that such restrictions are necessary to protect the particular resource(s) at issue, or to ensure the public health, safety, or general welfare of the community.

(2) Standards. Conservation restrictions shall be designed to protect the Highlands Resources, Highlands Resource Areas, or Special Protection Areas existing (or as remaining after an authorized disturbance) on the subject property in accordance with the requirements that follow. Any such restrictions shall be so drawn and described as to permit the future use of any underutilized portion of either, the disturbed area coverage allowance or the impervious surface area allowance, as provided for exclusions pursuant to § 163-102A(1), above.

(a) The conservation restriction shall run with the land on which the approved project is located, shall apply to all lots subdivided from that land and sold or transferred to other persons, and shall be binding upon the landowner and his or her successors in interest. To ensure that notice of the conservation restriction is provided to all present and future interested parties, the landowner or contract purchaser receiving the approval shall:

[1] Record the conservation restriction(s) in the office of the County Clerk or Register, as applicable prior to commencement of any work authorized under the approval; and

[2] Ensure that a copy of the conservation restriction is provided to the Highlands Council and to the Municipal Clerk with a request that it be placed in the file for the lot containing the approved project.

(b) The conservation restriction(s) shall describe and include all regulated features on the property, including any required mitigation. The proposed easement(s) shall be depicted in the proposed plans, inclusive in the case of major site plans and major subdivisions, of plan notes specifying the location and construction of clear and permanent on-site monuments, such as concrete posts, designed to minimize the need for land clearing and avoid obstruction of wildlife movement.

(c) The conservation restriction shall include either:

[1] A survey and a metes and bounds description of the entire restricted area; or

[2] A parcel plan showing the survey boundary lines to the full extent of the subject property, and indicating the limits of the existing disturbance area, any additionally approved disturbance area, and of any area excluded pursuant to § 163-102A(1), with the indication that no further development or disturbance shall be permitted; or

[3] In the case of no proposed encroachment upon Highlands Resources or Areas, and availability of Highlands Council GIS mappings for all such resources and areas present upon the property, copies of all such mappings applicable to the parcel.

(d) In the case of preserved farmland or dedicated open space, the conservation restriction shall be enforceable by the Highlands Council and the municipality, and at least one of the following, as appropriate: the SADC or CADB, the NJDEP Green Acres Program, or a qualified nonprofit land trust organization. All such easements shall require periodic monitoring to ensure that ongoing land use and management practices remain protective of the subject resources.

(e) All other conservation restrictions shall be enforceable by the municipality and the Highlands Council.

(f) The language to be included in the conservation restriction shall be reviewed and approved by the municipal or board attorney, as applicable.

D. STORMWATER MANAGEMENT.

(1) Applicability. The provisions of this subsection shall apply to any development application.

(2) Standards.

(a) Beneficial stormwater reuse. Development applications involving water demands for recreational uses, nonagricultural irrigation, and other nonpotable uses shall demonstrate maximum practical stormwater reuse to minimize both the volume of stormwater discharges and the water demand sought for such purposes.

(b) Regional stormwater plans. The stormwater management aspects of any development plan shall comply with all applicable components of any regional stormwater management plans adopted by NJDEP pursuant to N.J.A.C. 7:8 and N.J.A.C. 7:15.

(c) Total maximum daily loads (TMDLs). Applications shall be designed in compliance with any TMDL adopted by NJDEP (pursuant to N.J.A.C. 7:15) that has also been adopted by the municipality in compliance with the municipal stormwater management ordinance[2] as established pursuant to the municipal stormwater NJPDES permit under N.J.A.C. 7:14A and 7:8.

[2] Editor's Note: See Ch. 204, Stormwater Management.

(d) Prime Groundwater Recharge Areas. Where disturbance of Prime Groundwater Recharge Area (PGWRA) is permitted under § 163-106F, above, the applicant shall demonstrate compliance with all provisions of §§ 163-105B and 163-106G, above.

(e) Water quality. To the maximum extent feasible, the plan shall ensure recharge of clean stormwater rather than contaminated stormwater. Where runoff from contaminated areas is unavoidable, the applicant shall incorporate low-impact development [see Subsection D(2)(g), below] and other best management practices standards to minimize the discharge of stormwater-entrained pollutants to ground- and surface waters.

(f) Wellhead Protection Areas (WHPA). Any stormwater management structure located within a WHPA shall be permitted only in compliance with the provisions of §§ 163-105B and 163-106G, above.

(g) Low-impact development (LID). To the maximum extent feasible, LID techniques shall be incorporated into the design of all development proposals, to preserve, mimic and enhance the natural hydrologic cycle, drainage patterns and natural land cover existing on the site, including but not limited to:

[1] Implementation of on-site stormwater management features that maintain, restore and enhance the preexisting natural drainage patterns of the site;

[2] Achievement of an on-site stormwater capture performance standard of 80% for average annual precipitation, using low-impact development design techniques preferentially, and structural stormwater measures only to the extent necessary;

[3] Limitations on the amount of impervious cover on a site as a means to protect and increase stormwater infiltration and reduce stormwater runoff;

[4] Use of a "design with nature" approach where natural features are used or enhanced to achieve management of runoff volume, rate and quality of stormwater;

[5] Use of grass channels, dry swales, wet swales, infiltration basins, bioswales and water gardens, green roofs, and other low-impact approaches to attenuate and control stormwater and provide multiple environmental benefits;

[6] Minimization of: a) disturbances to natural vegetation and topography; b) exposure of stormwater runoff to pollutant-generating land uses; and c) alterations in the hydrologic response to precipitation through natural patterns; and

[7] Integration of stormwater management design features with public spaces, existing and proposed landscape features, and buffers, to the extent applicable.

E. SEPTIC SYSTEM DESIGN AND MAINTENANCE. The requirements herein apply to proposed development activities reliant upon installation of individual subsurface septic disposal systems, regarding the proper operation, design, development, monitoring, placement and maintenance of septic systems.

(1) The design of septic systems shall be in compliance with the Standards for Individual Subsurface Sewage Disposal Systems at N.J.A.C. 7:9A and any applicable Board of Health ordinance and shall be subject to approval of the Board of Health.

(2) All applications shall demonstrate that the proposed plan incorporates the applicable requirements of N.J.A.C. 7:9A with respect to soils suitability, location, size, and separation distances.

(3) All applications proposing new septic systems shall incorporate reserve septic system disposal areas for each septic system, which are sufficient with respect to soils suitability, location and size to meet the requirements of N.J.A.C. 7:9A, to ensure the long-term viability of septic systems in new development.

(4) Any application proposing a new septic system (or systems) shall be conditioned upon filing of a deed restriction(s) or deed notice(s) protecting the delineated location(s) of the reserve septic system disposal field(s), prohibiting the placement thereon of any permanent structure(s), preserving the area (and its soils) for future installation of a replacement disposal field, and requiring that it be shown on all plans and referenced within any future applications for permits or improvements to the property.

(5) All new individual septic disposal systems shall be subject to any applicable septic system management and maintenance requirements of the Board of Health, including those established in the Board of Health ordinance and in compliance with the standards for septic system maintenance in the Water Quality Management Planning Rules, N.J.A.C. 7:15.

(6) The application shall demonstrate compliance with any other Board of Health ordinances to achieve the maintenance of existing and new septic systems.

(7) New development proposing to use septic systems shall be designed in a manner that ensures that untreated well water meets state drinking water quality standards for non-natural contaminants and minimizes the risk of well contamination due to the flow of septic system's plumes within or between developed lots, addressing general background water quality and flow patterns, major fracture systems and other appropriate geological, geophysical and hydrogeological issues.

F. PUBLIC WATER SYSTEMS. The creation or expansion of any public water system, as permitted in the Existing Community Zone [pursuant to § 163-105C(7), above] shall comply with the following requirements:

(1) Estimation of need. Development water supply demands shall be calculated based on maximum summer month demand and on annual average demand using demand factors in N.J.A.C. 7:10, "Safe Drinking Water Regulations."

(2) Water resource transfers. Applicants shall demonstrate that under the proposed action either:

(a) No new or increased water transfer between subwatersheds will occur; or

(b) No other option exists to meet public health, safety and welfare objectives, and where such transfers do occur, they are in full compliance with the requirements of § 163-106E above (water conservation and deficit mitigation), including limitations on demands on the source subwatershed.

G. WASTEWATER COLLECTION AND TREATMENT SYSTEMS. The creation or expansion of any wastewater collection and treatment system, as permitted in the Existing Community Zone (including the Lake Community Sub-Zone) [pursuant to § 163-105C(7), above], shall comply with the following requirements:

(1) WQMP consistency. The proposed system shall be consistent with the relevant areawide water quality management plan adopted by NJDEP pursuant to N.J.A.C. 7:15.

(2) Prohibitions. Expansion of sewer service areas shall not be permitted for existing wastewater collection and treatment systems that are noncompliant with NJPDES permit requirements for effluent quality.

(3) Estimation of need. Development wastewater demands shall be calculated based on maximum three-month demand and on annual average demand using demand factors in N.J.A.C. 7:14A or N.J.A.C. 7:9A as appropriate.

(4) Water resource transfers. Applicants shall demonstrate that under the proposed action either:

(a) No new or increased water transfer between subwatersheds will occur; or

(b) No other option exists to meet public health, safety and welfare objectives, and where such transfers do occur, they are in full compliance with the requirements of § 163-106E above (water conservation and deficit mitigation), including limitations on demands on the source subwatershed.

§ 163-108 Planned development regulations.

A. RESIDENTIAL CLUSTER DEVELOPMENT.

(1) Findings. The intent of this article is to provide for cluster and conservation design development (hereinafter referred to as "cluster development") consistent with the Land Use Plan Element of the Master Plan and as defined at § 163-103B. Cluster development is a development design technique under which principal buildings and structures are grouped together on a portion of the cluster project area, while the remaining land area is permanently deed-restricted in agricultural use, for conservation of natural resources, or as open space for environmental protection including public recreational use. Cluster development allows flexibility in the design and layout of development projects, providing opportunity for new construction while addressing other priorities, such as: protecting environmentally sensitive areas, preserving large contiguous areas of open space and agricultural land, supporting the continuation of existing agricultural and/or horticultural land uses, and developing attractive residential development consistent with community character.

(2) Applicability. The provisions of this section shall apply to all lands in the ARA, as provided at § 163-104C(8) and as designated in the map entitled "Agricultural Resource Area" (Exhibit 8[1]). The permitted principal residential use for any underlying municipal zoning district in the ARA which permits single-family residential development as a principal use, is restricted solely to cluster development in accordance with all provisions of this section. Cluster development within the ARA shall be consistent with the Agriculture Retention/Farmland Preservation Plan Element of the Master Plan and the provisions of this article by supporting the preservation of farmland, avoiding conflicts with agriculture, maintaining and enhancing the sustainability and continued viability of the agricultural industry, protecting important farmland soils, and meeting the management and protection provisions of this article for Highlands Resources.

[1] Editor's Note: Exhibit 8 is included in Appendix F, Exhibits, which appendix is included as an attachment to this chapter.

(3) Cluster project area standards. The cluster project area (as defined at § 163-103B) includes all of the individual parcels from which development is clustered, including the area set aside for preservation and the area set aside for development. Residential cluster development shall be implemented in accordance with the Highlands Council Cluster/Conservation Design Development Guidelines, incorporated by reference herein, and shall incorporate the provisions below for the cluster project area. The use of clustering in Highlands zones or sub-zones having a high concentration of environmentally sensitive resources will be limited. The use of noncontiguous clustering, wherein the development rights of noncontiguous parcels are aggregated for use upon a single parcel (or group of adjacent parcels) suited to cluster development, shall be permitted and is encouraged where it affords a higher level of protection to Highlands Resources and Resource Areas than would otherwise be the case. Land management and stewardship, including best management practices and conservation and/or management plans, for the cluster project area shall be subject to the provisions of § 163-106 for all Highlands Resources including, but not limited to protection, restoration, maintenance and mitigation, as applicable.

(4) Preservation set aside of cluster project area standards.

(a) The area set aside for preservation in a cluster project area shall comprise at least 80% of the total cluster project area, and shall be preserved in perpetuity for agricultural use or for environmental protection. If the cluster project area is served by a public or community on-site wastewater system, the area set aside for preservation shall comprise at least 90% of the cluster project area to the maximum extent this is feasible. All land preserved in perpetuity shall require a conservation restriction that complies with § 163-107C and is enforceable and monitored by the Highlands Council, the Borough of Chester, and, where requested by the Highlands Council: for environmental protection, the NJDEP Green Acres or a qualified land trust nonprofit organization, or for agricultural use, the CADB or the SADC. All preservation set asides shall be deed-restricted against further subdivision and shall consist of one contiguous parcel, to the maximum extent feasible, unless noncontiguous clustering is utilized.

(b) When agricultural resources are preserved the following provisions shall apply:

[1] The most productive important farmland soils, determined in accordance with NRCS USDA soil survey data, NJDA and the local SCD shall be given priority in determining the area set aside for agricultural preservation within the cluster project area.

[2] The conservation easement or deed restriction and a legally enforceable homeowner's agreement, where applicable, shall include Right to Farm Act[2] provisions.

[2] Editor's Note: See N.J.S.A. 4:1C-1 et seq.

[3] Retention of the original farmstead or construction of new farmsteads associated with preserved agricultural lands in cluster developments shall be permitted.

[4] The preserved portion of the cluster project area shall be buffered appropriately to avoid conflicts between agricultural operations and adjacent development, including the developed portion of the cluster project area, and to facilitate compliance with Borough of Chester Right to Farm regulations.

[5] This article supports sustainable agriculture (as defined at § 163-103B and consistent with the Agriculture Retention/Farmland Preservation Plan Element of the Master Plan) and requires the implementation of best management practices on the agricultural land, including, as a condition of any approval, development and implementation of a farm conservation plan [as defined at § 163-103B and described at § 163-106H(4)] that addresses the protection of water and soil resources, prepared by the USDA NRCS, TSP, appropriate agent or NJDA staff, and approved by the local SCD.

[6] Community-supported agriculture businesses shall be permitted within the preserved portion of the cluster project area to allow homeowners to take advantage of local agricultural goods and services and to enhance the viability of the agricultural industry.

[7] Requirements (e.g., bulk standards) applicable to agricultural development shall be as provided for other agricultural uses at § 163-106H(3).

(c) When natural resources are protected the following provisions shall apply:

[1] Cluster development shall meet the resource management and protection requirements of § 163-106 and shall be consistent with the policies of the Conservation Plan Element of the Master Plan.

[2] Where high value natural resources are preserved, the conservation easement or deed restriction shall prohibit active recreational uses and facilities, and only allow minimal passive recreational uses dependent upon the nature of the resources.

[3] Passive recreational trails shall be allowed provided they do not disturb habitat and shall be natural landscape trails constructed using native pervious materials. Where feasible, such passive recreational trails shall link to existing federal, state and local trail systems, greenways and parks.

[4] Buffering techniques, management and stewardship of natural resources, and site design for the cluster project area shall be used, where feasible, to enhance the existing natural resources protected within the cluster project area.

(5) Development set aside of cluster project area standards.

(a) Cluster development shall be designed to avoid or minimize disturbance of natural resources and agricultural resources (including ARAs) of the Highlands Region in compliance with the provisions of this article.

(b) The total area set aside for development in the cluster project area shall not exceed 20%. To the maximum extent feasible, the developed area of the cluster project area shall occupy no more than 10%, if the project area is served by a public or community on-site wastewater system.

(c) For cluster development dependent upon septic systems, the unit yield for the whole of the cluster project area shall be based on the septic system density allowances as established at § 163-105C(4), or at the development density allowed under Borough of Chester Zoning, whichever is more restrictive.

[1] Septic system density allowances within the development set aside portion of the cluster project area shall not exceed that necessary to ensure that nitrate dilution for the developed portion of the site is maintained at 10 mg/L, or less. These allowances shall be calculated in accordance with the Highlands Council Nitrate Dilution Model, information about which may be found at the following website: This model derives from two independent methods: a mass-dilution (modified Trela-Douglas) model and the New Jersey Geological Survey's (NJGS) ground-water-recharge method. It provides the minimum number of acres required per septic system (applied as an average density) to ensure that recharge is sufficient to achieve nitrate dilution targets.

[2] For purposes of this calculation, the following factors, representative of a one-family household, or average wastewater generation of 300 gallons per day, shall be used as inputs to the nitrate dilution model:

[a] Household size of four persons;

[b] Average nitrate loading of 10 pounds per person per year; and

[c] Drought groundwater recharge for the HUC14 subwatershed as dilution.

[3] For purposes of this calculation, septic system yield shall be calculated on the basis of the developed portion of the site only, which shall consist of a contiguous land area including the following:

[a] All land area proposed to be occupied by buildings, structures and associated improvements, all land area to be disturbed in connection with the construction or installation of such buildings, structures and improvements, and all of the land area intervening; and

[b] All land area dedicated to any street or roadway providing public (or common) access to the development, to the limits of the right-of-way, easement, or other area(s) designated to contain such common access; and

[c] All land dedicated to a community on-site stormwater detention facility, or other like facility providing public (or common) services to the development, each to the limits of the easement, lot line(s), or other area(s) designated to contain such common facility.

(d) Water and wastewater availability, expansion, or creation for cluster development shall be in compliance with § 163-105C(5) through (7) and shall meet the resource management and protection provisions of this article.

(e) Cluster residential development proposing to use septic systems shall meet the resource management and protection provisions of this article.

(f) All infrastructure, open space and utilities necessary to support the residential cluster development shall be located within the development set aside of the cluster project area (i.e., streets, common open space areas, wastewater facilities and stormwater management).

(g) Where a municipality has developed and the Highlands Council has approved a plan for the aggregation of cluster developments to minimize the potential for dispersed clusters, the cluster development shall be consistent with such plan.

(h) Cluster development shall incorporate smart growth principles where feasible, including but not limited to: a mix of land uses; compact building design; walkable neighborhoods; a range of housing opportunities and choices; foster distinctive communities with a strong sense of place using design techniques illustrated in the Highlands Cluster/Conservation Design Development Guidelines; preserve critical natural and agricultural resources; direct development towards existing infrastructure (i.e., water, wastewater, transportation, and community facilities); provide a variety of transportation choices (i.e., pedestrian, bicycle automobile, bus, rail); and encourage community and stakeholder collaboration in development decisions. [Note: The Highlands Council will release the Cluster/Conservation Design Development Guidelines during the plan conformance process to facilitate the design of cluster development.]

(i) Cluster development shall incorporate LID techniques, as set forth at § 163-107B.

(j) Cluster development shall be designed to maintain the Highlands rural, scenic and historic character and shall consider and harmonize with existing community character with respect to architectural style, scale, massing and arrangement of buildings. Protection of Highlands Historic, Cultural and Archaeological Resources shall be considered and incorporated consistent with the provisions at § 163-106I. Primary criteria for site design decisionmaking shall include protection of existing resources and minimization of negative impacts.

(k) All buffers and setbacks shall consider and incorporate or harmonize with existing natural, agricultural, historic and scenic resources and with community character. Buffers and setbacks shall be designed to consider and harmonize with the cluster project area and adjacent existing development. Existing natural resources and vegetation (e.g., hedgerows/trees, woodlands or forest, wetlands, streams) shall be retained and may be enhanced as buffer features whenever feasible. Where the cluster development is integrated into an existing neighborhood or center-type development, the developed area of the cluster shall be located behind an existing hedgerow (mature trees) or screened with a new buffer as appropriate, such as a thickly planted berm of native trees or shrubs that is landscaped in such a manner as to resemble existing woodlands.

(l) Site disturbance shall be restricted to clearing and grading to the minimum extent necessary to make reasonable use of the designated building envelopes, including but not limited to compliance with LID requirements at § 163-107B and retention of existing mature trees.

(m) Cluster development shall be configured to minimize impervious coverage.

(6) Single-family dwelling area, yard and bulk standards. Residential cluster development shall be tailored to the characteristics of the site and its environs, and shall be designed to avoid or minimize disturbance of existing Highlands Resources. The following standards shall apply to residential cluster development projects. [Note: These requirements serve in the interim during the Basic Plan Conformance process until the municipality develops a cluster development ordinance approved by the Highlands Council or updates an existing cluster development ordinance that will include site design standards consistent with the municipal vision and approved by the Highlands Council.]

(a) Minimum acreage threshold requirements.

[1] Cluster development reliant upon on septic systems:

[a] Protection Zone: 120 acres.

[b] Conservation Zone: 40 acres.

[c] Existing Community Zone: 35 acres.

[2] Cluster development served by wastewater utilities:

[a] All zones: 30 acres.

(b) Net density/intensity threshold requirements.

[1] New single-family residential cluster development shall be subject to a net septic system density limitation, calculated on the basis of the developed portion of the cluster project area [as provided at § 163-106C(4)]. Such density (acres per septic system) shall comply with a nitrate dilution target for the developed portion of the cluster project of 10 mg/L or less.

[2] Where new single-family residential development is proposed to rely on existing wastewater utilities the density and intensity standards shall be in compliance with the underlying municipal zoning ordinance.

(c) Minimum unit number threshold requirement. Application of the acreage and density/intensity requirements of Subsection A(6)(a) and (b), above, shall yield a minimum of four dwelling units.

(d) Bulk requirements. Where the applicant demonstrates and the reviewing board finds, based upon submission of an analysis of natural and agricultural resources within the cluster project area, that the site design shall be enhanced by reducing the bulk requirements of this subsection (e.g., where existing topography or vegetation provides an effective visual screen), these requirements may be reduced by up to 50%. Such reductions shall similarly apply to the extent they may be necessary to ensure compliance with the density or intensity requirements of Subsection A(6)(b)[1] and [2] above. [NOTE: These requirements may be modified and supplemented by the municipality to ensure consistency with the definitions used in its existing zoning/land use ordinance and in consideration of community character, community vision, and the need to ensure that cluster development is achievable.]

[1] Cluster development reliant upon septic systems:

[a] Minimum lot frontage shall be 150 feet.

[b] Minimum lot width shall be 150 feet.

[c] Principal building setbacks.

[i] Minimum front yard setback shall be 50 feet.

[ii] Minimum side yard setback shall be 30 feet.

[iii] Minimum rear yard setback shall be 50 feet.

[d] Accessory building setbacks.

[i] Minimum setback from side or rear line shall be 15 feet; if a reduction is allowed, it shall be no less than 10 feet.

[ii] Minimum setback from other buildings shall be 15 feet; if a reduction is allowed, it shall be no less than 10 feet.

[2] Cluster development served by wastewater utilities:

[a] Minimum lot frontage shall be 100 feet.

[b] Minimum lot width shall be 100 feet.

[c] Principal building setbacks.

[i] Minimum front yard setback shall be 35 feet.

[ii] Minimum side yard setback shall be 20 feet.

[iii] Minimum rear yard setback shall be 35 feet.

[d] Accessory building setbacks.

[i] Minimum setback from side or rear line shall be 10 feet; if a reduction is allowed, it shall be no less than five feet.

[ii] Minimum setback from other buildings shall be 15 feet; if a reduction is allowed it shall be no less than 10 feet.

(e) Other requirements. All other development requirements for single-family dwellings, including any bulk standards not listed above (e.g., lot coverage, building coverage, building height), shall be as required pursuant to the underlying municipal zoning/land use ordinances.

§ 163-109 Application review procedures and requirements.

A. APPLICATION PROCEDURES. All procedural requirements regarding applications for zoning permits, construction permits, certificates of occupancy or approval, variance relief, site plan approval, subdivision approval, interpretations, appeals, and any other such application shall remain in effect as provided pursuant to the underlying municipal land use ordinances and other applicable codes and regulations in effect at the time of the application, except to the extent these may be modified by the provisions set forth herein.

(1) When required. All requirements stipulating the circumstances under which such permits or approvals are required, as set forth by the underlying municipal zoning and land use ordinances, and any other applicable codes and regulatory requirements shall remain in full force and effect as provided pursuant to such regulations, inclusive of the specific definitions used therein to classify applications for review and consideration by the appropriate municipal authority, including but not limited to such terms as: "major site plan," "minor site plan," "major subdivision," "minor subdivision," "use variance," "conditional use variance," "change in use," "bulk variance," "zoning permit," and "building permit." In the event that the underlying municipal land use ordinances do not require issuance of a permit or other approval for any activity, improvement, or development project covered under the provisions of this article, a Highlands resource permit shall be required in accordance with the provisions of § 163-109A(5), below.

(2) Highlands Act exemptions. Pursuant to § 163-102B(1)(d) above, any application proposing an activity, improvement or development project that qualifies as a Highlands Act exemption is exempt from the requirements of this article. Any applicant asserting same shall, as a condition of application completeness, and in any case prior to municipal review or approval of the application, provide evidence that the proposal qualifies as a Highlands Act exemption as provided under either, Subsection A(2)(a) or (b), below.

(a) State agency determination. State agency determinations shall consist of a Highlands exemption determination issued by the Highlands Council indicating that the proposal qualifies as a Highlands Act exemption. State agency determinations are required for any application under this article involving Highlands Act Exemption No. 14 or 15. State agency determinations are also required for any capital or other project of any state entity or local government unit, or for any other publicly owned or controlled land or facility; these categories including any project or improvement pertaining to the lands or facilities of the Borough of Chester.

(b) Municipal determination. Pursuant to Borough of Chester Ordinance ____, entitled "Borough of Chester Highlands Area Exemption Ordinance," effective as of [insert date], for any application under this article involving Highlands Act Exemptions Nos. 4, 6, 7, or 8, the applicant may request and shall be deemed to have satisfied the evidentiary requirement by obtaining a municipal exemption determination issued by the Municipal Exemption Designee, provided such determination indicates that the proposal qualifies as a Highlands Act exemption. The applicant may rely upon the findings of a municipal exemption determination to the same extent and with the same protections as would apply in the case of a Highlands exemption determination issued by the Highlands Council.

(3) Approvals subject to compliance. Approval of any land-use-related application, whether a zoning permit application, building permit application, application for development (as defined at § 163-103B), or any other such application, unless deemed a Highlands Act exemption pursuant to § 163-109A(2) above, is subject to compliance with the provisions of this article. Prior to any such approval, the reviewing entity shall ensure that the proposed activity, improvement or development project that is the subject of the application under its jurisdiction, is either in full compliance with all applicable provisions of this article; has received approval(s) from the entity or entities authorized to grant relief from such provision(s); or by its conditioned approval, where permitted herein, will remain subject to the issuance of such approval(s) from the entity or entities authorized to consider and issue such relief, with such approval(s) to issue prior to any land disturbance related to the proposed activity, improvement or development project.

(a) Building/construction permit applications. Demonstration of compliance with all applicable provisions of this article shall be required as a prior approval to the issuance of any building permit. Proof of such compliance shall be provided in writing, as issued by the applicable reviewing authority or authorities, including but not limited to the Borough of Chester Zoning Officer, Planner, Engineer, Planning Board, Zoning Board of Adjustment, Board of Health, Health Department. No building permit shall issue, unless and until a zoning permit has been issued by the Borough of Chester Zoning Officer.

(b) Zoning permit applications. Demonstration of compliance with all applicable provisions of this article shall be required prior to the issuance of any zoning permit or zoning approval. Where a finding of compliance requires authority or professional expertise outside the purview of the Zoning Official, such proof shall be provided in writing by the applicable reviewing authority or authorities, including but not limited to the Borough of Chester Planner, Engineer, Planning Board, Zoning Board of Adjustment, Board of Health, Health Department. In such instances, receipt of such findings of compliance shall constitute mandatory prior approvals to the issuance of any zoning permit or approval.

(c) Applications for development. Prior to granting any approval of an application for development, the Planning Board or Zoning Board of Adjustment, as applicable, shall make specific findings of compliance with regard to the applicable provisions of this article, such findings assisted by the advice and recommendations of the reviewing board's professionals, including but not limited to the Board Planner, the Board Engineer, and any specialist, expert or other consultant engaged by the Board to assist in any field of specialization. The reviewing board shall attach certain conditions to any such approval as provided at § 163-109B(3) below, but is by no means limited solely to these in making its determination on an application.

(4) Applications requiring prior Highlands Council approval. For any application listed in this subsection, authorization by the Highlands Council shall be obtained prior to a finding of application completeness, and prior to any review or approval of the application by the applicable municipal authority. In all such cases, applications shall be filed with the Highlands Council in accordance with its established submission and procedural guidelines.

(a) New/extended utility infrastructure. Any application proposing installation of new or extended water supply or wastewater collection/treatment utility infrastructure in any zone or sub-zone other than the Existing Community Zone (including the Lake Community Sub-Zone but excluding the Existing Community Environmentally Constrained Sub-Zone), pursuant to § 163-105C(6).

(b) Water availability. Any application proposing new or increased use of potable or nonpotable water averaging 6,000 gallons per day or more, pursuant to § 163-106E(2), unless regulated under a Highlands Council-approved water use and conservation management plan.

(5) Findings of compliance. With regard to any application, or any specific aspect of an application for which the Highlands Council has explicitly issued an approval, the applicable reviewing authority shall find that, to the extent the approval specifically addresses the provisions of this article, the applicant has demonstrated compliance. Such approvals shall not be construed to waive or obviate other applicable provisions of this article or of any other applicable municipal or nonmunicipal ordinances, regulations or requirements. With respect to all other findings of compliance, the provisions of this subsection shall apply.

(a) Professionals required. Findings of compliance with the provisions of this article shall be provided only by individuals qualified to review and make such determinations. In many but not all instances these shall require licensed, certified or otherwise qualified professionals such as scientists, engineers, planners or geologists. Fee and escrow requirements associated with applications requiring approval under this article shall reflect the reasonable anticipated expenses associated with processing and reviewing such applications, as provided at § 163-109C below. The following professionals (where the term "professionals" is construed to include any and all qualified individuals licensed, certified, or otherwise eligible and authorized to complete such work, in accordance with the applicable laws and legal requirements of the State of New Jersey) shall, to the extent of their applicable licensure, certification, or other appropriate qualifications, be authorized to review and provide findings pursuant to this article, and shall be designated as required, by the municipal governing body or reviewing Planning Board or Zoning Board of Adjustment, as applicable:

[1] Use, density, intensity and other bulk requirements: professional planner; professional engineer; zoning officer.

[2] Forest resources: certified tree expert; forester; forest scientist/ecologist.

[3] Highlands Open Waters, riparian areas: wetlands or riparian scientist/ecologist; environmental engineer (as required for water quality management issues).

[4] Steep slopes: professional engineer; geologist; topographic surveys: licensed land surveyor.

[5] Water conservation and deficit mitigation, prime groundwater recharge areas, wellhead protection areas, stormwater management: hydrogeologist; professional engineer; water resources engineer; environmental engineer.

[6] Low-impact development: landscape architect, professional engineer; environmental engineer; professional planner qualified and experienced in applicable areas.

[7] Conservation/deed restrictions: attorney.

(b) Zoning and building/construction permit applications. Where a zoning or building/construction permit application (or request for approval) is not preceded by an application for development under the purview of the Planning Board or Zoning Board of Adjustment, the reviewing official shall rely upon the determination(s) of the individual designated in Subsection A(5)(a), above, for findings of compliance with respect to the applicable provisions of this article.

[1] All determinations by the qualified professional shall be determinative in the disposition of any zoning or building/construction permit application with respect to required prior approvals.

[2] Where the professional determines that an approval may be granted subject to certain conditions, such conditions shall be addressed prior to the issuance of any permit or approval by the building or zoning official, unless in the estimation of the professional, satisfaction of the required conditions of approval will not be compromised by issuance of the zoning or building/construction permit and are ensured by other means, such as withholding of any final certificates of occupancy or approval.

[3] The findings of the review professional shall be provided in writing to both the municipal official(s) responsible for the review and disposition of the zoning or building/construction permit, and to the applicant. Where such findings indicate that the application is not compliant with the applicable provisions of this article, the review professional shall provide a statement identifying the reasons therefor. Where the review professional indicates that an approval may be granted pending satisfaction of certain conditions, a statement and explanation of the conditions to be attached shall be set forth as well as the reasons therefor.

[4] The findings of the review professional may be appealed by any affected party in accordance with the provisions of the underlying land use ordinance, pursuant to N.J.S.A. 40:55D-70(a).

[5] The professional review process shall occur as follows:

[a] Upon notice from the municipal official(s) responsible for the review and disposition of the zoning or building/construction permit that a prior approval is required, it shall be the applicant's responsibility to prepare a request for review and issuance of such approvals by the designated municipal professional(s).

[b] The applicant shall provide all of the documents and materials required for submission under an application for development pursuant to § 163-109D, below, to the extent they apply with respect to the particular resources and article provisions at issue, for review by the professional.

[c] The professional shall provide a completeness determination in writing, within 30 days of receipt of the application materials, which in the event of an incomplete application, shall indicate the reasons therefor. The professional shall have the authority to waive submission of items he or she finds unnecessary or irrelevant to the evaluation and the required report of findings.

[d] The professional shall review and provide a report of findings to both the municipal official(s) and the applicant within 45 days of the date on which the application is deemed complete.

[e] The review professional shall have authority to issue such waivers and exceptions as provided only in accordance with § 163-110, below.

(c) Highlands resource permit applications. In the event that the underlying municipal land use ordinances do not require issuance of a zoning or building permit, or approval of an application for development through which compliance with the provisions of this article may be demonstrated, the provisions herein shall apply.

[1] Any person proposing an activity, improvement or development project that will affect a Highlands resource, resource area, or protection area, shall obtain a Highlands resource permit in accordance with this section.

[2] Applications shall be made on forms provided by the municipality requiring identification of the owner of the property or properties at issue, the tax block and lot, street address, the extent, location and type of activity proposed, and by submission of a consistency determination report from the Highlands Council website, an indication of the resources potentially affected by the proposed activity.

[3] The designated review authority for such applications shall be the Borough of Chester Zoning Officer or Engineer.

[4] The review and disposition of such applications shall occur as provided for zoning and building/construction permits, in the preceding sections, with approvals being issued only upon a finding of compliance.

(d) Applications for development. With respect to applications for development, findings of compliance shall be provided by the applicable professional(s) through the process of review and consideration undertaken by the Planning Board or Zoning Board of Adjustment. The reviewing board [or its committee(s), if applicable] shall consider all such findings during the course of the application for development, in conjunction with all other relevant information and requirements in rendering a final decision in any matter.

B. APPLICATIONS FOR DEVELOPMENT. The provisions of this subsection shall apply to any application for development (see § 163-103B, above) under the jurisdiction of the Planning Board or Zoning Board of Adjustment.

(1) Notice and reporting requirements. The provisions of this section shall apply in addition to all requirements concerning public notice for applications for development as provided under the MLUL and required pursuant to the underlying municipal land use ordinances.

(a) Notice of application to Highlands Council. The applicant for any application for development shall provide notice to the Highlands Council at least 10 days prior to the date on which the application is scheduled for consideration by the local board. A copy of the complete application shall accompany such notice regarding any application for development involving the potential disturbance of two acres, or more, or a cumulative increase in impervious coverage of one acre, or more. The applicant shall provide copies of any subsequent revisions to such applications to the Highlands Council at the same time these are provided to the reviewing board. If such plans or plats have been prepared in digital form, they shall be provided to the Highlands Council in a digital format that meets Highlands Council standards for such submissions.

(b) Notice of decision required. The reviewing board shall provide a certified copy of the fully executed resolution memorializing its final decision regarding any application for development to the Highlands Council within 10 days of its adoption. This provision shall apply in all cases, whether the board approves the application for development, denies it, or approves it with conditions.

(2) Board decisions subject to Highlands Council call-up. All board decisions pertaining to applications for development involving the ultimate disturbance of two acres or more of land or a cumulative increase in impervious surface by one acre or more are subject to call-up and subsequent review by the Highlands Council in accordance with procedural requirements and time frames established pursuant to the Highlands Act. The Highlands Council may, on notice to the applicant within 15 days of receipt of the memorializing resolution of the reviewing board, review and require a public hearing on the application. In that case, subsequent to the hearing the Highlands Council may approve the application for development, deny it, or issue an approval with conditions.

(3) Conditions of approval. The following conditions of approval shall, in addition to any applicable conditions previously set forth under this article, be attached to any application for development approved pursuant to the MLUL, and the provisions of § 163-109A, above.

(a) No land disturbance. No land disturbance approved in connection with an application for development involving the ultimate disturbance of two acres or more of land or a cumulative increase in impervious surface by one acre or more shall occur until and unless, either:

[1] The Highlands Council call-up period has expired without issuance of a notice seeking review of the application by the Highlands Council; or

[2] The Highlands Council has issued notice and has reviewed the approval pursuant to N.J.S.A. 13:20-17(a)1 and has determined not to deny or modify the approval.

(b) Amendments. In the event that Highlands Council review of an approved application for development pursuant to § 163-109B(2) above results in a finding that the plans must be modified, the applicant shall amend the application accordingly and submit the amended application to the reviewing board for approval. Such submissions shall include the written findings and notice of decision of the Highlands Council.

(c) Conservation restrictions. The applicant shall commit to and, as a condition of approval, perfect a conservation restriction on the undisturbed portions of Highlands resources, Highlands resource areas, and special protection areas located on the subject property, if and as required pursuant to the provisions of § 163-107C.

(d) Approvals conditioned on state approvals. All approvals shall be subject to the approval of any and all state agencies or other authorities having jurisdiction over any aspect or aspects of the approved application for development.

(e) As-built surveys required. Prior to issuance of any final certificate of occupancy or approval, or to the release of any performance bonding held in relation to the approved application for development, the applicant shall provide an "as-built" survey depicting the final site conditions.

(f) Submission of final plans/plats to Highlands Council. The applicant shall provide a copy of any final site plan or subdivision plat to the Highlands Council. If such plans or plats have been prepared in digital form, they shall be provided to the Highlands Council in a digital format that meets Highlands Council standards for such submissions.

C. APPLICATION FEE AND ESCROW REQUIREMENTS. The application fee and escrow requirements of this subsection shall apply in addition to all existing fee and escrow requirements, including procedural and legal requirements, as set forth in the underlying municipal land use ordinances. All application fees and escrows shall be managed and dispensed as prescribed under all applicable state and local requirements, including but not limited to those of the MLUL and the Uniform Construction Code.

(1) Highlands resource review. The fee and escrow requirements herein shall apply to applications for Highlands Resource Permits, and to Zoning Permit and Building/Construction Permit applications for which Highlands Resource review is required as a prior approval pursuant to § 163-109A(3).

(a) Highlands resource review fees.

[1] Applications involving determinations regarding: permitted/prohibited uses, water use and conservation, wellhead protection, prime groundwater recharge, low-impact development, or any combination of these: application fee: $50.

[2] Applications involving determinations regarding any one or combination of the following: density or intensity of development standards, forest resources, steep slopes, water deficit mitigation, or stormwater management (including stormwater low-impact development): application fee: $100.

[3] Applications involving determinations regarding any combination of items listed in both Subsection C(1)(a)[1] and [2], above, shall be subject to the application fee listed at Subsection C(1)(a)[2].

(b) Escrow deposit requirements.

[1] Applications requiring compliance determinations pursuant to any Highlands resource component listed in the following table shall be accompanied by the escrow deposits therein indicated. Where an application involves more than one of the listed application compliance components, escrow deposits shall be cumulative.

Application Compliance Component		Escrow Deposit
a)	Density or intensity standards	$150
b)	Forest resources	$200
c)	Steep slopes	$150
d)	Water deficit mitigation	$250
e)	Stormwater management and stormwater LID	$250
f)	Conservation/deed restrictions	$250
g)	Operations and contingency plans	$200

[2] Escrow deposits shall be used by the municipality to cover the costs of professional reviews associated with the respective Highlands resource components. Where any escrow account is depleted to an amount equaling 25% or less of the original deposit amount, the status and progress of the application shall be reviewed by the applicable municipal official(s), and the professional responsible for Highlands resource review shall determine whether account replenishment is necessary, and if so, by what amount. On notice from the municipality of any such replenishment requirement, the applicant shall provide the additional escrow accordingly and within such time frames as therein stated.

(2) Applications for development. All fee and escrow requirements pertaining to applications for development shall remain as set forth in the underlying municipal land use ordinances, with the adjustments provided herein as a supplemental requirement, applicable in the case of any application for which the reviewing board requires professional assistance in making findings of compliance pursuant to § 163-109A(5).

(a) The required escrow deposit for applications involving determinations regarding any one or more of the following resource components shall be calculated by multiplying the existing escrow deposit requirement by 1.25: water use and conservation, wellhead protection, prime groundwater recharge, low-impact development.

(b) The required escrow deposit for applications involving determinations as to any of the following resource components shall be calculated by multiplying the existing escrow deposit requirement by 0.25 for each applicable item, and adding each to the existing escrow deposit amount: density or intensity of development standards, forest resources, steep slopes, water deficit mitigation, or stormwater management (including stormwater low-impact development).

(c) The required escrow deposit for any application involving determinations listed at both Subsection C(2)(a) and (b), above, shall be calculated by multiplying the existing escrow deposit requirement by 0.25 and adding the result to the amount determined under Subsection C(2)(b).

D. SUBMISSION CHECKLIST REQUIREMENTS. All applicants seeking approval for any activity, improvement or development project covered under the provisions of this article shall submit the materials required in this section for review by the applicable municipal authority. In no case shall an application for development (as defined in § 163-103) be deemed complete or scheduled for board review until such time as the board has received all required items in accordance with the provisions herein. Applications for Highlands resource permits and for zoning permits and building/construction permits requiring Highlands resource review shall not be considered for such review until such time as the reviewing authority has received all required items in accordance with the provisions herein. In all cases, the submission requirements of this subsection shall be considered supplemental to the checklist requirements of the underlying municipal land use ordinances.

(1) General submission requirements. All applications shall be accompanied by the following:

(a) Application fees and escrow deposits.

(b) Completed application forms (14 copies, plus one copy submitted in electronic format).

(c) Highlands Act exemptions. Any applicant claiming eligibility for an exemption under the Highlands Act shall provide one of the following:

[1] Municipal exemption determination as provided under (pursuant to Highlands Area Exemption Ordinance); or

[2] Highlands exemption determination from the Highlands Council.

(d) Prior approvals. All applications requiring prior approvals pursuant to the provisions of this article shall provide evidence of receipt of same, as listed below. All such applications shall be accompanied by copies of the specific plans, reports and other materials to which such approval applies.

[1] For any application proposing an increase in the use of net water availability or conditional water availability pursuant to § 163-106E, notice of findings issued by the Highlands Council pursuant to § 163-106E(7).

[2] For any application proposing installation of new or extended water supply or wastewater collection/treatment utility infrastructure in any zone or sub-zone other than the Existing Community Zone (including the Lake Community Sub-Zone but excluding the Existing Community Environmentally Constrained Sub-Zone), pursuant to § 163-106C(6), notice of authorization issued by the Highlands Council.

(e) Mapping instructions. All mapped information shall be provided for the full parcels affected by the proposed project and a distance of 200 feet from the outer boundaries of all affected parcels. Where this article requires field surveys of resources, the field survey requirement shall apply only to the affected parcels and shall be conducted by qualified professionals. These include specifically: contiguous steep slope areas of 5,000 square feet or more which are not within the Steep Slope Protection Area; areas defined as "forest" via the methodology provided at Appendix A[1] which are not identified within the Total Forest Area, or which revise the Total Forest Area. The area within 200 feet of the affected parcels may be mapped using existing data and is not subject to field surveys. Where field surveys are not required for mapping of Highlands resources, the application shall include Highlands Council GIS data. In addition to paper plans, initial plan sets shall be submitted on CD (or other acceptable archival electronic format) in the most recent version of ESRI Shape files (.shp) and in the most recent version of Adobe Acrobat® (.pdf) format. The plans must be geo-referenced using New Jersey State Plane Coordinates NAD83 (or the most current New Jersey State Plane coordinate system). The final approved version shall be submitted in the same manner. Plan revisions (subsequent to the initial plan sets but prior to final approved version) shall be submitted in .shp and .pdf either in archival electronic format or via e-mail. Projects that will disturb less than two acres and will create less than one acre of net impervious surface may be submitted as geo-referenced CAD files in lieu of the ESRI Shape files.

[1] Editor's Note: Appendix A is included as an attachment to this chapter.

(2) Permit applications. The submission requirements of this subsection shall apply in addition to those of § 163-109D(1) above, in the case of all applications for Highlands resource permits and for zoning or building/construction permits requiring Highlands resource review. Where the reviewing authority or designated review professional determines that a submission item listed in this subsection is not applicable to the proposed development project or is unnecessary to the conduct of such review, the authority or designated professional may waive the requirement for its submission. A waiver of submission of any checklist item shall not be construed to preclude the reviewing entity from ultimately requiring the submission of such item, however, if during the course of application review, it is found necessary and relevant in making a determination.

(a) Base submission requirements.

[1] Identification of highlands zone or sub-zone in which the property is located (available through Highlands Council website).

[2] Identification of Highlands resource and protection areas in which the property is located, inclusive of Highlands Council maps indicating the boundary lines of same unless fully encompassing the property (Highlands Council website).

[3] Existing and proposed use(s) and accessory use(s), including any proposed major or minor PCS (listed at Appendix B and Appendix C[2]).

[2] Editor's Note: Appendix B and Appendix C are included as attachments to this chapter.

[4] Copy of property survey indicating metes and bounds, existing buildings, structures, impervious surfaces, significant site features (e.g., water bodies), easements or other such encumbrances.

[5] Plans showing the proposed area of disturbance for all aspects of the development, including but not limited to buildings, driveways, utilities, landscaped areas and all appurtenant structures.

[6] Plans showing the proposed grading, soil conservation plan, and sediment and soil erosion control plan.

[7] Plans showing proposed conservation restrictions or easement(s) to be provided (if applicable) pursuant to § 163-107C.

[8] Plans documenting baseline conditions in all areas designated for public (or nonprofit land trust) open space preservation.

[9] Water use.

[a] Existing and proposed water demand inclusive of calculations based on use and unit/square footage equivalents listed at § 163-105C(3).

[b] For any application proposing an average of 6,000 or more gallons per day of new or increased water use pursuant to § 163-106E(2):

[i] All submission items required pursuant to any adopted municipal or subwatershed-based water use and conservation management plan (WUCMP).

[ii] The following, where a WUCMP has not been adopted and the application proposes use of conditional water availability pursuant to § 163-106E(7)(b):

[A] Information identifying project water demand data, water supply source and water utility provider.

[B] Identification of the water supply source HUC14(s) for the project, deficit status, and conditional availability as provided by the Highlands Council.

[C] Deficit mitigation plan pursuant to § 163-106E(7)(b)[4].

[10] Septic systems.

[a] For all applications proposing new septic systems, plans showing the proposed location and configuration of such system(s), including designated area(s) for reserve septic disposal field(s) pursuant to § 163-107E. Plan notes indicating that the septic system(s) shall be designed in accordance with N.J.A.C. 7:9A, and that design plans and details are subject to the approval of the [insert applicable Administrative Authority of the municipality].

[b] Proposed deed restrictions to be imposed to prohibit the installation or construction of any permanent improvements within the reserve disposal area(s) pursuant to § 163-107E.

[11] Stormwater management.

[a] For applications regulated under municipal or regional stormwater management plans (or both), all applicable submission requirements pertinent thereto.

[b] Proposed low-impact development management practices to minimize the creation or increase of stormwater runoff due to development or disturbance of the site.

[12] Low-impact development.

[a] Description of conservation design planning process, pursuant to § 163-107B(2).

[b] Landscape plan (if applicable) indicating proposed type, species, quantity and location of plantings; planting details.

[c] Description of energy efficiencies incorporated into building(s), building orientation and site design.

[d] Description of proposed reuse or recycling of building materials.

[13] Any such additional information as the reviewing authority may find necessary to determine compliance with the provisions of this article.

(b) Highlands resource submission requirements. For applications involving properties containing any Highlands resource, Highlands resource area or special protection area, all submission checklist items required pursuant to each, as provided at § 163-109D(4) through (11), below.

(3) Applications for development. The submission requirements of this subsection shall apply in addition to those of § 163-109D(1) and (2) above, to all applications for development involving properties containing Highlands resources or located within a Highlands resource area or special protection area. Where the reviewing board determines that a submission item listed in this subsection is not applicable to the proposed development project or is unnecessary in the conduct of its review, the board may waive the requirement for its submission. A waiver of submission of any checklist item shall not be construed to preclude the reviewing board from ultimately requiring the submission of such item, however, if during the course of application review, it is found necessary and relevant in making a determination.

(a) Base submission requirements. In addition to the base submission requirements of § 163-109D(2) above, the following shall apply:

[1] Existing features and site analysis plan, identifying and mapping:

[a] All Highlands Open Waters and water bodies (including but not limited to rivers, lakes, ponds, reservoirs, wetlands, seeps, springs);

[b] All existing structures (including archaeological features, ruins and stone walls);

[c] All significant physical features; and

[d] Existing trails and greenways, and preserved lands and farmland.

[2] Architectural elevation renderings, if structures are proposed (preliminary for subdivision applications).

[3] A list of any preexisting encumbrances affecting the property (e.g., easements, deed restrictions, covenants).

[4] Copies of any related surveys, site plans, professional reports and environmental site assessments.

(b) Highlands resource submission requirements. For applications involving properties containing any Highlands resource, Highlands resource area or special protection area, all submission checklist items required pursuant to each, as provided at § 163-109D(4) through (11), below.

(c) Cluster development requirements. For applications proposing cluster development pursuant to § 163-108, all submission checklist items required pursuant to § 163-109D(11), below.

(4) Forest resources.

(a) Plans identifying forests using the Highlands Council Forest Resource Area, and Total Forest GIS layers for forest resources.

(b) Information identifying upland forests existing outside of the limits of the Total Forest Area by use of the forest determination methodology of Appendix A[3] (N.J.A.C. 7:38-3.9).

[3] Editor's Note: Appendix A is included as an attachment to this chapter.

(c) Where required in connection with disturbances pursuant to § 163-106A(4), forest impact report [§ 163-106A(5)] and forest mitigation plan [(§ 163-106A(6)].

(5) Highlands Open Waters and Riparian Areas.

(a) Maps showing the location of all Highlands Open Waters, Highlands Open Waters buffers, and Riparian Areas, as provided in this article.

(b) For linear development pursuant to § 163-106B(3)(g), all items required as listed therein.

(6) Steep slopes.

(a) Map showing limits of Steep Slope Protection Area as provided in this article.

(b) Map showing any additional areas of contiguous steep slopes that, separately or in combination with the Steep Slope Protection Area, constitute an area of 5,000 square feet or more, including, for any proposed disturbance therein, clear delineation of slope classes as defined at § 163-103B.

(c) For any application proposing linear development of a moderately or severely constrained slope area pursuant to § 163-106C(3)(a), all items as listed and required therein.

(d) For any application proposing disturbance of a constrained or limited constrained slope pursuant to § 163-106C(3)(b), a steep slope development plan indicating proposed low-impact development techniques, slope stabilization techniques, soil erosion and sediment control measures, stormwater controls, and methods of protection proposed for existing slope vegetation and trees.

(e) For any application proposing to disturb 5,000 square feet or more of constrained or limited constrained steep slopes:

[1] Environmental Impact statement or report including specifically: the impact of the proposed development on Highlands regional scenic resources (if applicable, in adjacent municipalities); aesthetic impacts related to visibility and aesthetic quality of the proposed development; the extent of proposed landform grading, stabilization and retaining structures; and impacts on other environmental features addressed by the steep slopes provisions of this article.

[2] Hydrology, drainage and flooding analysis report or reports prepared in support of conformance with the municipal stormwater management plan and regulations adopted pursuant to N.J.A.C. 7:8, or a Flood Hazard Area Control Act application pursuant to N.J.A.C. 7:13.

(7) Critical Habitat.

(a) Maps identifying Critical Habitat using the Critical Habitat GIS layers for Critical Wildlife Habitat, as provided in this article.

(8) Prime Groundwater Recharge Areas.

(a) Map identifying Prime Groundwater Recharge Areas as provided in this article.

(b) For any application proposing to disturb a Prime Groundwater Recharge Area:

[1] Site analysis and proposed low-impact development techniques pursuant to § 163-106F(3).

[2] PGWRA mitigation plan pursuant to § 163-106F(3)(d).

[3] Hydrology, drainage and flooding analysis report or reports prepared in support of conformance with municipal stormwater management plan and regulations pursuant to N.J.A.C. 7:8 or a Flood Hazard Area Control Act application pursuant to N.J.A.C. 7:13.

[4] Site specific geologic, hydrogeologic and pedologic analysis to determine the overall recharge rate and volume and to determine the location with the lowest recharge potential within the PGWRA. The submitted analysis report shall include appropriately scaled geologic, hydrogeologic and pedologic maps and cross sections showing all pertinent geologic, hydrogeologic and pedologic features. The report shall also present all relevant analytical results, calculations and graphical data.

(c) Identification and description of any existing or proposed major potential contaminant source (Appendix B[4]), proposed best management practices pursuant to § 163-106G(3)(a).

[4] Editor's Note: Appendix B is included as an attachment to this chapter.

(9) Wellhead protection.

(a) Map identifying Wellhead Protection Areas (WHPAs) and time of travel tiers as provided in this article. Where more than one WHPA tier intersects an existing or proposed potential contaminant source (Appendix B and Appendix C[5]) within a project site, identify the more protective tier as the applicable tier for that potential contaminant source.

[5] Editor's Note: Appendix B and Appendix C are included as attachments to this chapter.

(b) Identification and description of any existing or proposed major or minor potential contaminant source (Appendix B and Appendix C[6]).

[6] Editor's Note: Appendix B and Appendix C are included as attachments to this chapter.

(c) For parcels within a Tier 1 WHPA for which a new or expanded major PCS is proposed, the proposed best management practices pursuant to § 163-106G(3)(a).

(d) Copies of any related hydrogeologic/geologic reports, remediation reports, results of soil or groundwater analyses or other environmental assessment reports (i.e., Phase I or Phase II reports).

(10) Agricultural Resource Areas (ARA).

(a) Map identifying the limits of the ARA as provided in his article.

(b) [For municipal completion:] Such additional plans and information as may be required in the review of any agricultural or horticultural development proposal pursuant to municipal provisions set forth at § 163-106H(3).

(c) For cluster/conservation design development, all submission checklist items as provided at § 163-109D(11), below.

(11) Cluster/conservation design development.

(a) Property survey(s) identifying the limits and configuration of the proposed cluster project area, inclusive of all contributing parcels in the case of noncontiguous clustering, and indicating all tract or parcel areas to the nearest 0.01 acre.

(b) Development plans applicable to the development set aside of the cluster project area, including all details as required pursuant to the municipal subdivision ordinance, to define and describe all proposed supporting infrastructure, including but not limited to: roadways, curbing, sight lines, street rights-of-way, utilities (e.g., water, sewer, gas, electric, telecommunications), stormwater management, lighting, street tree plantings, common areas, signage and landscaping.

(c) Development plans applicable to the development set aside indicating proposed buffering, lot layout, lot sizes, configurations, and dimensions, building envelopes, building setbacks and yard areas.

(d) Proposed plans applicable to the preservation set aside of the cluster project area, including:

[1] For ARA applications proposing preserved farmland, information identifying farmland soil quality on the project site, including prime, statewide, unique, and locally important farmland soils.

[2] Plans for agricultural or horticultural development, including all information required under § 163-109D(10)(b), above.

[3] Plans for open space preservation, if applicable, including active or passive recreation amenities.

[4] Proposed conservation restrictions pursuant to § 163-108A(4), identifying intended dedications regarding all preserved portions, including those applicable to any noncontiguous parcels.

(e) Identification of any preserved land or land known to be targeted for preservation (agriculture and open space) located within 200 feet of the subject property.

§ 163-110 Appeals; waivers; exceptions.

A. APPLICABILITY. Except to the extent modified by the provisions of this article, the existing provisions of the underlying municipal land use ordinance with respect to appeals, waivers and exceptions shall remain in full force and effect. This article shall not be construed to alter the applicable time frames, procedural requirements or criteria for decisionmaking as set forth under the MLUL, and as provided consistent therewith in the underlying municipal land use ordinance.

B. APPEALS.

(1) Administrative officer decision. Any order, requirement or decision of any municipal official made or issued in the course of the enforcement of the provisions of this article may be appealed to the Zoning Board of Adjustment in accordance with all applicable provisions of the MLUL [including but not limited to N.J.S.A. 40:55D-70(a), 40:55D-70.2, and 40:55D-72 through 40:55D-75].

(2) Interpretations. Requests for interpretation of the maps and various provisions of this article may be made by application to the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(b). The Board, in rendering any such decisions shall be guided by the map protocols listed at § 163-104E and the specific language of the article provisions in question. The Board may seek the advice and counsel of the Highlands Council in resolving any matter of interpretation and all final Board decisions shall remain subject to Highlands Council call-up and review provisions as set forth at § 163-109B(2).

(3) "C" Variances. All MLUL criteria applicable to variance relief under N.J.S.A. 40:55D-70(c) shall apply in the consideration of applications seeking such relief from the provisions of this article. Such relief shall apply with respect to the requirements of § 163-105, Zone District Regulations, § 163-106H(3)(a), Agricultural and Horticultural Development, and § 163-108A, Residential Cluster Development, with the exception that for the items listed at Subsection B(5), below, relief shall in addition require prior authorization of the Highlands Council. Where certain deviations from the strict application of the provisions of this article or the underlying municipal zoning ordinance will minimize or eliminate adverse impacts to Highlands resources, resource areas, or special protection areas, these benefits shall be given significant weight in the analysis of approval criteria.

(4) "D" Variances. All MLUL criteria applicable to variance relief under N.J.S.A. 40:55D-70(d) shall apply in the consideration of applications seeking such relief from the relevant provisions of this article. Such relief shall apply with respect to the requirements of § 163-105, Zone District Regulations, § 163-106H(3)(a), Agricultural and Horticultural Development, and § 163-108A, Residential Cluster Development, with the exception that for the items listed at Subsection B(5), below, relief shall, in addition, require prior authorization of the Highlands Council. Where certain deviations from the strict application of the provisions of this article or the underlying municipal zoning ordinance will minimize or eliminate adverse impacts to Highlands resources, resource areas, or special protection areas, these benefits shall be given significant weight in the analysis of approval criteria. For purposes of clarification, requests for relief that pertain to specific provisions of this article regarding permitted uses shall be recognizable as requests for "d" variance relief pursuant to N.J.S.A. 40:55D-70(d).

(5) Highlands Council jurisdiction. Relief from any of the following specific provisions of § 163-105 of this article may be granted by the reviewing board or other municipal authority only where a waiver has been issued by the Highlands Council. No such application shall be deemed complete or considered for review by the board or other municipal authority absent such authorization. Applicants seeking any such relief shall make application directly to the Highlands Council.

(a) Prohibited uses: all provisions of § 163-105B(3).

(b) Mandatory residential cluster development: all provisions of § 163-105B(1).

(c) Water availability requirements: all provisions of § 163-105C(3).

(d) Density: any Planning Area application proposing a new or expanded septic system pursuant to § 163-106C or § 163-108A, in excess of the permitted septic system density allowance.

C. WAIVERS AND EXCEPTIONS. Relief from any provision of § 163-106 [with the exception of § 163-106H(3)(a)] or § 163-107 of this article shall require issuance of either a Highlands Act waiver or an exception, as provided in this subsection. Highlands Act waivers may be issued only by the Highlands Council. Exceptions may be granted by the reviewing municipal board or authority only where the review standards of this subsection have been satisfied.

(1) Highlands Act waiver provisions. Highlands Act waivers may be issued only by the Highlands Council in accordance with the respective rules and criteria established by each agency in accordance with the provisions of the Highlands Act and the Highlands Regional Master Plan. A Highlands Act waiver shall be required in the event of any application proposing the disturbance of a Highlands resource, resource area or special protection area in excess of, or not in compliance with, that authorized under the applicable provisions of §§ 163-106 and 163-107 of this article. Highlands Act waivers shall also be required for any application proposing: a) use of net or conditional water availability in excess of that authorized by the Highlands Council; b) water deficit mitigation insufficient to comply with mitigation requirements of the Highlands Council pursuant to § 163-106E(7)(b); or c) installation or expansion of a use or structure listed as a PCS at Appendix B or Appendix C[1] [where not otherwise prohibited by use restrictions of § 163-105B(3)] in a manner inconsistent with all provisions and conditions of approval of § 163-106G(3). The issuance of a Highlands Act Waiver shall in no case be construed to alter or obviate the requirements of any other applicable state or local laws, rules, regulations, development regulations, or ordinances.

[1] Editor's Note: Appendix B and Appendix C are included as attachments to this chapter.

(2) Municipal exception provisions.

(a) For applications other than those cited at § 163-110C(1), above, the reviewing board or other authority may grant exceptions from the strict application of the provisions of §§ 163-106 and 163-107 of this article only where the applicant demonstrates and the reviewing entity finds that:

[1] The deviation is unavoidable and represents the minimum feasible under the particular circumstances surrounding the project proposal, and the grant of relief is reasonable, necessary and supports the general purpose and intent of the applicable provisions; or

[2] The literal enforcement of the provision(s) of the article at issue is impracticable or will exact undue hardship because of peculiar conditions pertaining to the land in question.

(b) The approval of an exception must be accompanied by a detailed justification provided in writing, including at a minimum an explanation of how and to what extent the following conditions are addressed:

[1] The exception addresses Subsection C(2)(a)[1] or [2] above;

[2] The exception provides relief only to the minimum extent necessary;

[3] Other environmental features are not damaged in the process of protecting the regulated resources; and

[4] No alternative exists that will allow for at least a minimum practical use of the property (if applicable).

§ 163-111 Enforcement; violations; penalties.

A. ENFORCEMENT. Enforcement of the provisions of this article shall be the responsibility of the Borough of Chester Zoning Officer, Engineer, Health Department, Construction Code Official and any other officer or entity designated by the Borough Administrator or governing body, as applicable. Enforcement shall occur in the case of any activity, improvement, or development project that violates any provision of this article, whether or not subject to a permitting or approval process pursuant to this article, or the underlying municipal land use ordinances.

B. INSPECTIONS.

(1) Site inspections. The Borough Engineer is authorized to and shall periodically inspect all project sites for compliance with development approvals pursuant to this article. The inspector shall in addition:

(a) Verify of baseline conditions in all areas designated for conservation easements, deed restrictions or other means of resource preservation.

(b) Sequence compliance inspections to ensure the protection of on-site and off-site resources, achievement of site construction and environmental impact requirements, placement of conservation easement monuments, etc.

(c) Verify "as-built" conditions to ensure compliance with all approvals, conservation easements, deed restrictions or other required means of resource preservation.

C. ADMINISTRATIVE COMPLIANCE. The Chester Borough Zoning Officer, Construction Code Official or Borough Engineer, as the case may be, shall be authorized to issue a stop-work order, revoke building permits, refuse to approve further work, or deny certificates of occupancy or approval, and to impose mandatory remedial and corrective measures including full restoration of any resources that are improperly disturbed.

D. PENALTIES. Civil and criminal penalties for violations of this article shall be as established in accordance with the Code of the Borough of Chester.